The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 3 contracts
Samples: Document Agreement and Plan of Merger (Information Resources Inc), Document Agreement and Plan of Merger (Information Resources Inc), Document Agreement and Plan of Merger (Information Resources Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs subparagraphs (a) through (e) or (hc) of Exhibit A hereto Annex I shall have occurred and be continuing and not have been waived by Parent or be existingMerger Sub, as promptly as reasonably practicable but and, in no event later than ten business days after any event, within five (5) Business Days of the date of the public announcement of this Agreement, Parent and Merger Sub shall commence amend the Pending Offer within to reflect the meaning execution of this Agreement and the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")terms hereof. The obligations of Parent and Merger Sub to accept for payment, payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for, ) any shares of Company Common Stock validly tendered pursuant on or prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (as it may be extended and re-extended in accordance with this Agreement) and not properly withdrawn shall be subject to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer (as so extended, shall also it may be defined herein as an "Expiration Date"). Parent extended and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (ire-extended in accordance with this Agreement) reduce the that number of shares of Company Common Stock which represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis, including after giving effect to the issuances of shares of Company Common Stock pursuant to Section 2.12 (the “Minimum Condition”), and (ii) the other events or conditions set forth in Annex I. Subject to the terms and conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer, which shall initially be the later of April 2, 2010 or the date that is fifteen (15) Business Days after the date of this Agreement; provided, however, that (w) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement), any of the events or conditions to the Offer set forth on Annex I shall exist and, subject to the Offerprovisions of this Agreement, shall not have been waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to), from time to time, extend the Offer for consecutive periods of not more than five (5) Business Days each until the earlier of (A) the date on which all of the events or conditions set forth in Annex I cease to exist or, subject to the provisions of this Agreement, are waived by Merger Sub and (B) the date on which this Agreement is terminated in accordance with ARTICLE VIII; provided that Merger Sub shall have no obligation to (and Parent shall have no obligation to cause Merger Sub to) so extend the Offer if (1) the events or conditions set forth in subsections (ii) reduce the Offer Price to be paid pursuant to the Offer), (iii) change and (iv) of the first paragraph of Annex I and subparagraph (a) of Annex I shall have ceased to exist, or waive subject to the Minimum Tender Condition provisions of this Agreement, been waived by Merger Sub, for a period of not less than ten (10) Business Days prior to the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as defined it may be extended and re-extended in Exhibit Aaccordance with this Agreement) and, with respect to subsections (ii), add (iii) and (iv) of the first paragraph of Annex I, such facts shall be reflected in an amendment to the Offer Documents prior to the start of such ten (10) Business Day period, (2) the events or conditions set forth in Exhibit A subparagraphs (b), (c) and (d) of Annex I shall have ceased to exist or, subject to the provisions of this Agreement, been waived by Merger Sub, as of such expiration date and (3) the Minimum Condition is not satisfied as of such expiration date, (x) if on the initial expiration date of the Offer or modify on any condition subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement), the Company shall have delivered to Parent a valid Section 8.1(d) Notice, Merger Sub shall (and Parent shall cause Merger Sub to), from time to time, extend the Offer for consecutive periods of not more than five (5) Business Days each until the earlier of (A) the date on which all of the events or conditions set forth in Exhibit A in any manner adverse the paragraph immediately following Section 8.1(d)(i) cease to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer exist or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of are waived by the Company and (B) the date on which this Agreement is terminated in accordance with ARTICLE VIII, (y) Merger Sub may, in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC (or the staff thereof) or the NYSE applicable to the Offer; or Offer and (Cz) extend the Offer for Merger Sub may, in its sole discretion, provide a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange Act; provided that, in the case of clauses (w), (x), (y) for a period of three and (z), in no event shall the Offer extend beyond the Walk-Away Date. Merger Sub expressly reserves the right from time to twenty business days in order time to acquire at least 90% waive any of the outstanding shares conditions set forth in Annex I (other than the Minimum Condition, the Registration Condition, the Listing Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the Company Common Stock. On Offer Price or to make any other changes in the terms and subject to conditions of the conditions to Offer; provided that, without the Offer that are set forth in this Agreementprior written consent of the Company, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to not decrease the Offer (Price, change the "Acceptance Date")form of consideration payable in the Offer, all decrease the number of shares of Company Common Stock validly tendered and not withdrawn pursuant sought to be purchased in the Offer, change, modify or waive the Minimum Condition, impose additional conditions to the Offer that Parent and Merger Sub are or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall remain open or, except for any extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to accept and pay for under applicable lawthe holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (CF Industries Holdings, Inc.), Agreement and Plan of Merger (Terra Industries Inc), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
The Offer. (a) Subject Merger Sub shall not, and Parent shall cause Merger Sub not to, commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer prior to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingApril 14, as 2015. As promptly as reasonably practicable but on or after such date (and, in no event later than ten business days any event, within five (5) Business Days after the date of the public announcement of this Agreementsuch date), Parent and Merger Sub shall, and Parent shall commence the Offer cause Merger Sub to, commence, within the meaning of Rule 14d-2 promulgated under the applicable rules and regulations of Exchange Act, the Securities and Exchange Commission (the "SEC")Offer. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. Annex I (the “Offer Conditions”). The initial expiration date of the Offer shall be initially expire at 11:59 p.m. (New York City time) on the 25th business day date twenty (20) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"Exchange Act). Parent and Merger Sub expressly reserve reserves the right to waive waive, in whole or in part, any condition to the Offer Condition or modify the terms of the Offer; provided, except however, that, without the written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change amend, modify or waive the Minimum Tender Condition Condition, (as defined in Exhibit A), iv) add to the conditions set forth in Exhibit A Offer Conditions or amend, modify or supplement any condition set forth in Exhibit A Offer Condition in any manner adverse to the holders any holder of Company Common Stock, (ivv) except as provided below required or permitted in this Section 1.01(a1.1(a), terminate, extend or otherwise amend or modify the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer or Offer, (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders any holder of Company Common StockStock or (viii) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. Notwithstanding Subject to the foregoing, Merger Sub may (but shall not be obligated to), without the consent provisions of the Company and in its sole and absolute discretionArticle VII, (Ai) from time to time extend the Offer if, if at the any scheduled Expiration Date, any of the conditions expiration date of the Offer any Offer Condition shall not have been satisfied or waived until such time as such conditions are satisfied or waived (to the extent permitted by under applicable Law and this Agreement; ), Merger Sub may, in its sole discretion, without the consent of the Company, extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days each (the length of such period to be determined by Parent or Merger Sub), or for any such period longer than five (5) Business Days as the parties hereto may agree, until the earlier of (A) the termination of this Agreement in accordance with its terms and (B) October 30, 2015 (the “End Date”); (ii) if at any scheduled expiration date of the Offer any Offer Condition shall not have been satisfied or waived (to the extent permitted under applicable Law and this Agreement), at the request of the Company, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer, on one or more occasions, in consecutive increments of up to five (5) Business Days each (the length of such period to be determined by Parent or Merger Sub), or for any such period longer than five (5) Business Days as the parties hereto may agree, until the earlier of (A) the termination of this Agreement in accordance with its terms and (B) the End Date; and (iii) Merger Sub shall extend the Offer for any the minimum period required by any ruleapplicable Law or the applicable rules, regulation, interpretation regulations interpretations or position positions of the SEC applicable or its staff or the New York Stock Exchange; provided, however, that, notwithstanding any other provision of this Agreement to the Offer; or (C) contrary, in no event shall Merger Sub be required to extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under x) beyond the Exchange ActEnd Date or (y) for a period of three at any time that Parent or Merger Sub is entitled to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stockterminate this Agreement. On Upon the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock validly tendered and not withdrawn that Merger Sub becomes obligated to purchase pursuant to the Offer that Parent and promptly after the expiration of the Offer. Payment of shares of Company Common Stock by Merger Sub are permitted pursuant to accept and pay for under applicable lawsubject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.1(a)), unless this Agreement is validly terminated in accordance with Section 7.1. In the event that this Agreement is terminated pursuant to Article VII, Merger Sub shall promptly (and, in any event, within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. The termination of the Offer pursuant to the immediately preceding sentence is referred to this Agreement as the “Offer Termination,” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date.” If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is validly terminated in accordance with Article VII, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Norcraft Companies, Inc.), Agreement and Plan of Merger (Fortune Brands Home & Security, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable but in no event later than ten business days the later of (x) six Business Days after the date of this Agreement and (y) the public announcement first Business Day following publication in the Federal Register of this AgreementSEC Release Number 34-54684 relating to the amendments to Rule 14d-10 promulgated under the Exchange Act (the date of such publications referred to as the “Publication Date”), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "“SEC"”). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be midnight New York City time on the 25th business later of (x) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the Publication Date and (y) the 20th Business Day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3) of the SEC) (the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”). Parent and Merger Sub expressly reserve reserves the right (x) if the Minimum Tender Condition has not been satisfied or if an Adverse Recommendation Change has been made, to increase the Offer Price and (y) to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a1.1(a), extend the Offer, (vvi) change the form of consideration payable in the Offer or (vivii) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, in its discretion, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer iffor one or more consecutive increments of not more than five Business Days each, if at the any otherwise scheduled Expiration Date, Date of the Offer any of the conditions of the Offer shall to Merger Sub’s obligation to purchase Shares are not have been satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; Offer or (Ciii) make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11. In addition, if at any otherwise scheduled Expiration Date of the Offer any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than five Business Days each. In addition, Merger Sub shall, if requested by the Company, make available a "subsequent offering period in accordance with Exchange Act Rule 14d-11 of not less than ten Business Days; provided that Merger Sub shall not be required to make available such a subsequent offering period in the event that, prior to the commencement of such subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90, Parent and Merger Sub, directly or indirectly own more than 80% of the outstanding shares of the Company Common StockFully Diluted Shares. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall accept for payment and purchase, as promptly as practicable after the date on which Parent or cause Merger Sub (as the case may be) first accepts shares to, accept and pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. For the avoidance of doubt, the parties hereto agree that shares of Restricted Company Common Stock may be tendered in the Offer and pay for under applicable lawbe acquired by Parent or Merger Sub pursuant to the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Jaharis Mary), Agreement and Plan of Merger (Kos Pharmaceuticals Inc), Agreement and Plan of Merger (Abbott Laboratories)
The Offer. (a) Subject to the conditions of this The Merger Agreement and provided provides that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall Purchaser will commence the Offer within and that, upon the meaning terms and subject to prior satisfaction or waiver of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except Purchaser will purchase all Shares validly tendered and not properly withdrawn pursuant to the Offer. The Offer is conditioned upon, among other things, there being tendered and not withdrawn prior to the Expiration Date a number of Shares which, together with any Shares beneficially owned by Parent or Purchaser, represent a majority of Shares then outstanding on a Fully Diluted Basis. The Merger Agreement provides that, without the written consent of the Company, Merger Sub shall Purchaser will not (i) reduce decrease the number Offer Price, change the form of shares of Company Common Stock subject consideration to be paid in the Offer, (ii) reduce the Offer Price maximum number of Shares to be paid pursuant purchased in the Offer or the Minimum Condition, impose additional conditions to the Offer, (iii) change Offer or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify amend any condition set forth of the Offer in Exhibit A in any a manner adverse to the holders of Company Common StockShares. Additionally, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer Merger Agreement provides that if all conditions are not satisfied or (vi) otherwise amend the Offer in any manner adverse waived prior to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of Purchaser will extend the conditions Expiration Date of the Offer shall not have been satisfied or waived from time to time for the shortest time periods permitted by law and which it reasonably believes are necessary, until the earlier to occur of (i) such time as such conditions are satisfied or waived to waived, and (ii) July 15, 1999; and that notwithstanding the extent permitted by this Agreement; (B) prior satisfaction of all conditions, Purchaser may extend the Offer for any period required by any ruleup to ten days after the initial scheduled Expiration Date. Purchaser will, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On on the terms and subject to the prior satisfaction or waiver of the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, pay for Shares validly tendered and not properly withdrawn as promptly soon as practicable after expiration of the date Offer. The Merger. Following the consummation of the Offer, the Merger Agreement provides that, subject to the terms and conditions thereof, and in accordance with the DGCL, as soon as practicable, Purchaser will be merged with and into the Company. As a result of the Merger, the separate corporate existence of Purchaser will cease and the Company will continue as the Surviving Corporation. The obligations of each of Parent and Purchaser, on which Parent the one hand, and the Company, on the other hand, to effect the Merger are subject to the satisfaction on or Merger Sub prior to the Closing Date (as defined in the case may beMerger Agreement) first accepts shares for payment pursuant to of each of the Offer following conditions: (the "Acceptance Date"), i) Purchaser shall have purchased all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer Offer; (ii) if required by applicable law, the Merger shall have been approved and adopted by the requisite vote of the holders of Shares; (iii) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any court or other tribunal or governmental body or authority which prohibits the consummation of the transactions contemplated by the Merger Agreement substantially on the terms contemplated thereby; and (iv) any waiting periods applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated. At the Effective Time of the Merger (i) each issued and outstanding Share (other than Dissenting Shares, any Shares that are owned by the Company or any wholly owned subsidiary of the Company, and any Shares owned by Parent or any wholly owned subsidiary of Parent) will be converted into the right to receive the Merger Consideration, and (ii) each issued and outstanding share of capital stock of Purchaser will be converted into one share of common stock of the Surviving Corporation. The Company Board. The Merger Agreement provides that upon the purchase and payment by Parent or Purchaser of Shares representing at least a majority of the outstanding Shares on a Fully Diluted Basis, Parent shall be entitled to designate such number of directors (rounded up to the next whole number) on the Company Board so that the percentage of directors that are Parent's nominees equals the percentage of outstanding Shares beneficially owned by Parent and its affiliates; and that the Company shall, at such time, upon the request of Purchaser, promptly use its best efforts to take all action necessary to cause such persons designated by Parent to be elected to the Company Board, either by increasing the size of the Company Board or securing resignations of incumbent directors, or both. At such time, the Company shall also cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of (i) each committee of the Company Board, (ii) each board of directors (or similar body) of each subsidiary of the Company and (iii) each committee (or similar body) of each such subsidiary board of directors. The Merger Sub are permitted to accept and pay for under applicable law.Agreement further provides that, notwithstanding the provisions of the foregoing paragraph, until the Effective Time of the Merger, the Company Board shall include at least two directors who were 21
Appears in 3 contracts
Samples: Shelby Williams Industries Inc, Falcon Products Inc /De/, Falcon Products Inc /De/
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer Article 6 shall have occurred and be the 25th business day following the commencement of the Offer existing (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except unless waived as provided below in this Section 1.01(aArticle 6), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub hereof (but in no event later than the twentieth business day after the public announcement of this Agreement), Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the case may be) first accepts shares for payment "Exchange Act"), the Offer. The Offer will be made pursuant to the Offer Documents (as defined below) containing the "Acceptance Date")terms and conditions set forth in this Agreement. Acquisition shall accept for payment, purchase and pay for all shares of Company Common Shares, Convertible Preferred Stock and Warrants which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that Parent and Merger Sub are permitted all conditions to the Offer set forth in Article 6 shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for under applicable lawShares, Convertible Preferred Stock and Warrants tendered pursuant to the Offer shall be subject only to the condition that at least a majority of the then issued and outstanding Shares (giving effect to the conversion of all outstanding shares of Convertible Preferred Stock and the exercise of all then outstanding Warrants) be validly tendered (the "Minimum Condition") and the satisfaction of the other conditions set forth in Article 6. 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 that, unless previously approved by the Company in writing, no change may be made which decreases the Per Share 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 imposes conditions to the Offer in addition to those set forth in Article 6 or which amends or changes any term or condition of the Offer in a manner adverse to the holders of Shares). In the case of shares of Convertible Preferred Stock tendered pursuant to the Offer, Acquisition shall pay the Per Share Amount multiplied by the number of Shares into which such Shares of Convertible Preferred Stock are then convertible. In the case of Warrants tendered pursuant to the Offer, Acquisition shall purchase such Warrants for a purchase price equal to the difference between the exercise price thereof and the Per Share Amount, multiplied by the number of Shares for which such Warrants are then exercisable. The Per Share Amount shall be paid net to each seller in cash, less any required withholding of taxes, upon the terms and subject to the 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.
Appears in 3 contracts
Samples: Merger Agreement (Chesapeake Biological Laboratories Inc), Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Ac Acquisition Subsidiary Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none VIII, Merger Sub shall commence (within the meaning of Rule 14d-2 under the events set forth in paragraphs Securities Exchange Act of 1934, as amended (athe "Exchange Act")) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten five business days after the date of the initial public announcement on the date hereof or the following day of this Agreement, Parent and Merger Sub shall Sub's intention to commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Parent and Merger Sub to accept for payment, payment and pay for, any for shares of Company Common Stock tendered pursuant to the Offer are shall only be subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the condition (the "Minimum Condition") that at least the number of shares of Company Common Stock (together with the shares of the Company Common Stock, if any, then owned by Parent or Merger Sub) constituting a majority of the then outstanding shares of Company Common Stock on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in Exhibit A. As used herein, "fully diluted basis" means issued and outstanding shares of Company Common Stock and shares of Company Common Stock subject to issuance under vested Options (as defined in Section 2.06(c)) and shares of Company Common Stock subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or securities convertible or exchangeable for such capital stock, but shall not include unvested Options. Merger Sub expressly reserves the right, subject to compliance with the Exchange Act, to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, however, that unless Parent and Merger Sub shall have obtained the prior written approval of the Company, no change may be made in the Offer which (i) decreases the Per Share Amount, (ii) reduce changes the Offer Price form of consideration to be paid pursuant to in the Offer, (iii) change or waive reduces the Minimum Tender Condition maximum number of shares of Company Common Stock to be purchased in the Offer, (as defined in Exhibit A), add iv) modifies the conditions to the conditions Offer set forth in Exhibit A or modify any condition imposes conditions to the Offer in addition to those set forth in Exhibit A in any manner adverse to the holders of Company Common StockA, (ivv) modifies or waives the Minimum Condition or (vi) except as provided below in this Section 1.01(a1.01(b), extend extends the Offer. The Per Share Amount shall, (v) change the form subject to applicable withholding of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse taxes, be net to the holders of Company Common Stock. Notwithstanding the foregoingseller in cash, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On upon the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.of
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Superior Telecom Inc), Agreement and Plan of Merger (Superior Telecom Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 7.1 hereof, Merger Sub shall, as promptly as reasonably practicable but in no event later than after the date hereof (and Merger Sub shall use commercially reasonable efforts to, within ten (10) business days after the date of hereof), commence the public announcement of this Agreement, Parent and Offer. Each Share accepted by Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject shall be exchanged for the right to receive a fraction of share of Parent Common Stock (the conditions set forth in Exhibit A. "EXCHANGE RATIO") equal to 0.79. The initial expiration date of the Offer shall be the 25th twentieth business day following commencement of the commencement Offer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the initial "Expiration Date," requirements of this Section 1.1(a)) and any not withdrawn a number of shares of Company Common Stock which, together with the shares of Company Common Stock then owned by Parent and Merger Sub (if any), represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to the expiration time and date established pursuant to an authorized extension of the Offer (as so extendedit may be extended in accordance with the requirements of this Section 1.1(a)), shall also and (ii) a number of shares of Company Common Stock determined by Parent up to a maximum of the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities (if any) that will be vested by the Outside Date (as defined herein in Section 7.1(b)(ii) hereof) (the number of shares determined by adding the shares referred to in clause "(i)" and clause "(ii)" of this sentence being hereinafter referred to as an the "Expiration DateFULLY DILUTED SHARES")) (and the condition previously referred to in this sentence being referred to as the "MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto. Parent and Merger Sub expressly reserve the right to waive any condition the conditions to the Offer or modify and to make any change in the terms or conditions of the Offer; PROVIDED, except thatHOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce no change may be made which decreases the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce changes the form or amount of consideration to be paid, imposes conditions to the Offer Price in addition to be paid pursuant to the Offerthose set forth in Annex I, (iii) change changes or waive waives the Minimum Tender Condition (as defined in Exhibit A), add to or any of the conditions set forth in Exhibit A clauses (2), (4), (5) or modify any condition (7) of Annex I, extends the Offer (except as set forth in Exhibit A in the following two sentences), or makes any manner other change to any of the terms and conditions to the Offer which is adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders shares of Company Common Stock. Notwithstanding Subject to the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions terms of the Offer shall not have been satisfied and this Agreement and the satisfaction (or waived until such time as such conditions are satisfied or waived waiver to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and shall pay for all such shares of Company Common Stock promptly after acceptance; PROVIDED, HOWEVER, that Parent and (x) Merger Sub shall extend the Offer for successive extension periods not in excess of ten (10) business days per extension if, at the scheduled expiration date of the Offer or any extension thereof, any of the conditions to the Offer shall not have been satisfied or waived, until such time as such conditions are permitted satisfied or waived, and (y) Merger Sub may extend the Offer if and to accept the extent required by the applicable rules and pay regulations of the Securities and Exchange Commission ("SEC") or The New York Stock Exchange (the "NYSE"). In addition, Merger Sub may extend the Offer after the acceptance of shares of Company Common Stock thereunder for a further period of time by means of a subsequent offering period under applicable lawRule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). No fraction of a share of Parent Common Stock will be issued in connection with the exchange of Parent Common Stock for shares of Company Common Stock upon consummation of the Offer, but in lieu thereof each tendering stockholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such stockholder) in the Offer shall receive from Parent an amount of cash (rounded up to the nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the average closing sale price of one (1) share of Parent Common Stock on the NYSE during the ten (10) trading days ending on the trading day immediately prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (C Cube Microsystems Inc/De), Agreement and Plan of Reorganization (C Cube Microsystems Inc/De)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs (a) through (e) or (ha)—(g) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but in no event later than ten business days on the date that is the 10th Business Day after the date of the public announcement of this Agreement, MergerSub shall, and Parent and Merger Sub shall cause MergerSub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act) the Offer to purchase for cash all of the Securities and Exchange Commission (outstanding shares of Company Common Stock at the "SEC")Offer Price. The initial Expiration Date of the Offer shall be 12 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer. The obligations of MergerSub to, and of Parent and Merger Sub to cause MergerSub to, accept for payment, payment and to pay for, for any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer and not validly withdrawn shall be subject only to (i) there being validly tendered and not validly withdrawn prior to the expiration of the Offer that number of shares of Company Common Stock which, when added to any shares of Company Common Stock already owned by Parent or any of the Parent Subsidiaries, if any, represents at least a majority of the shares of Company Common Stock outstanding on a Fully-Diluted Basis, excluding shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures (the Offer are subject “Minimum Condition”) and (ii) the satisfaction or waiver (to the extent permitted under this Agreement) of the other conditions set forth in Exhibit A. The initial expiration date Annex I hereto (collectively, the “Offer Conditions”). MergerSub expressly reserves the right, from time to time, to waive any of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant Conditions or to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify make other changes in the terms and conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub MergerSub shall not (iA) reduce amend or waive the Minimum Condition, (B) decrease the Offer Price, (C) decrease the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vD) change the form of consideration payable in the Offer, (E) impose conditions to the Offer that are in addition to the Offer Conditions, (F) extend the Expiration Date of the Offer in any manner other than as permitted in this Section 1.01 or (viG) otherwise amend any of the terms and conditions of the Offer in any manner adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but u) if there shall not be obligated tohave been one or more Extension Excluded Parties as of the Extension Excluded Party Notice Date and the Company shall have delivered to Parent the written notice identifying such Extension Excluded Party in accordance with Section 5.03(b), without the consent of the Company and in its sole and absolute discretion, (A) from time to time MergerSub shall extend the Offer if, at until the scheduled Expiration first Business Day following the Cut-off Date, any of (v) if on the conditions initial Expiration Date of the Offer or on any subsequent scheduled Expiration Date of the Offer, all Offer Conditions shall not have been satisfied or waived until waived, MergerSub may, from time to time, in its sole discretion, extend the Offer for one or more periods of not more than five (5) Business Days each beyond such time as such conditions are satisfied or waived Expiration Date, provided, however, that MergerSub shall not be entitled to extend the extent permitted by this Agreement; Offer to any date occurring after the Termination Date, (Bw) MergerSub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or NASDAQ applicable to the Offer; or , (Cx) MergerSub shall extend the Offer for one or more periods of no more than five (5) Business Days each (or such longer period as the parties hereto agree) until the condition set forth in clause (ii) of the first paragraph of Annex I related to the HSR Act and Foreign Antitrust Laws is satisfied or waived; provided, however, that in no event shall MergerSub be required to extend the Offer (1) beyond the Termination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement pursuant to Article VIII, (y) if on any scheduled Expiration Date, the Minimum Condition is not satisfied but all other Offer Conditions are satisfied, then MergerSub shall extend the Offer on a "single occasion for a five (5) Business Day period; provided, however, that in no event shall MergerSub be required to extend the Offer (1) beyond the Termination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement pursuant to Article VIII, and (z) MergerSub may, in its sole discretion, provide a “subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange ActAct (a “Subsequent Offering Period”) for of not more than twenty (20) Business Days to meet the objective that there be validly tendered, in accordance with the terms of the Offer, prior to the Expiration Date and not validly withdrawn, a period number of three shares of Company Common Stock, which when added to twenty business days in order to acquire any shares of Company Common Stock already owned by Parent or any of the Parent Subsidiaries, represent at least 90% of the then outstanding shares of the Company Common StockStock at the Offer Closing (including following the exercise of the Top-Up Option at Parent or MergerSub’s option). On In addition, MergerSub may increase the Offer Price and extend the Offer to the extent required by applicable Law in connection with such increase in each case in its sole discretion and without the Company’s consent. Subject to the prior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or MergerSub (to the extent permitted under this Agreement) of the other Offer Conditions, MergerSub shall, and Parent shall cause MergerSub to, in accordance with the terms and subject to of the conditions to Offer, consummate the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall and accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) after expiration of the Offer (subject to the provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer Price shall be net to the seller in cash, without interest, upon the terms and subject to the conditions of the Offer. Acceptance for payment of the shares of Company Common Stock pursuant to and subject to the conditions of the Offer after the expiration of the Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so tendered be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Certificate tendered, or required for any other reason relating to such holder or requesting Person, or shall have established to the satisfaction of Parent and Merger Sub are permitted MergerSub that such Tax either has been paid or is not required to accept and pay for under applicable lawbe paid.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Galaxy Dream Corp), Agreement and Plan of Merger (Rc2 Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided that So long as this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs Annex I hereto (aas ------------ ------- hereinafter provided) through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub Purchaser shall commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2(a) of the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")) as promptly as practicable after the date hereof, ------------ but in any event not later than the tenth business day following the date hereof. The obligations obligation of Parent and Merger Sub the Purchaser to accept for payment, payment and pay for, any shares of Company for Common Stock Shares tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," Minimum Condition and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer satisfaction or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not waiver (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC other conditions set forth in Annex I hereto (the "Offer ------- ----- Conditions"). The Share Offer Price shall, subject to applicable withholding of ---------- taxes, be net to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days seller in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On cash, upon the terms and subject to the conditions of the Offer. Subject to the terms of the Offer that are and this Agreement and the satisfaction or waiver (to the extent permitted by this Agreement) of all the conditions of the Offer set forth in this Annex I hereto as of the Initial ------- Expiration Date or any expiration date permitted by the Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall Purchaser will accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent as soon as practicable after such expiration date of the Offer. The initial expiration date for the Offer shall be the twenty-fifth business day from and Merger Sub 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 "Initial Expiration Date"). Subject to ----------------------- Section 8.01, if the conditions set forth in Annex I hereto are not satisfied ------------ ------- or, to the extent permitted by this Agreement, waived by the Purchaser, as of the Initial Expiration Date (or any subsequently scheduled expiration date), Purchaser may extend the Offer from time to accept time for the shortest time periods permitted by law and pay for under applicable lawto the extent Purchaser reasonably believes such extensions are necessary until the consummation of the Offer (it being understood that, notwithstanding the satisfaction of the Offer Conditions, the Purchaser shall have the right, but not the obligation, to extend the Offer until the Outside Offer Date).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Coinmach Laundry Corp), Agreement and Plan of Merger (CLC Acquisition Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit ANNEX A hereto shall have occurred or be existing, Purchaser shall, and Parent shall cause Purchaser to, as promptly as reasonably practicable after the date hereof (but in no event later than ten the tenth business days day after the date of the public announcement of the terms of this Agreement), Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2(a) of the Securities and Exchange Commission Act of 1934, as amended (the "SECEXCHANGE ACT"). The obligations ), an offer (the "OFFER") to purchase any and all of Parent and Merger Sub to accept for payment, and pay for, any the outstanding shares of Company Common Stock tendered (and associated Rights) at a price of Twenty-One United States Dollars ($21.00) per share and associated Right (the "OFFER PRICE"), net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the Offer are subject to the terms and conditions set forth in Exhibit A. this Agreement. The initial expiration date of the Offer shall be the 25th twentieth business day following from and after the commencement of date the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration DateINITIAL EXPIRATION DATE"). Parent The obligation of Purchaser to accept for payment, purchase and Merger Sub expressly reserve the right to waive pay for any condition shares of Company Common Stock (and associated Rights) tendered pursuant to the Offer or modify the terms of the Offershall be subject, except thatas provided in Section 1.1(b), without only to the written consent satisfaction of the Company, Merger Sub shall not (i) reduce the condition that a number of shares of Company Common Stock subject representing not less than fifty-one percent (51%) of the total issued and outstanding shares of Company Common Stock on a fully-diluted basis (after giving effect to the Offerconversion or exercise of all outstanding options, warrants and other rights or securities convertible into shares of Company Common Stock) (excluding any shares of Company Common Stock held by the Company or any of its Subsidiaries) on the date such shares are purchased pursuant to the Offer have been validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION") and (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions set forth in Exhibit ANNEX A or modify any condition set forth in Exhibit A in any manner adverse hereto; PROVIDED, HOWEVER, that Purchaser expressly reserves the right to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, waive any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth (other than the Minimum Condition) and to make any change in this Agreement, promptly after the Expiration Date, either Parent terms or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to conditions of the Offer (the "Acceptance Date"in its sole discretion, subject to Section 1.1(b), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (International Paper Co /New/), Agreement and Plan of Merger (Shorewood Packaging Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable but in no event later than ten business days (10) Business Days after the date of that the public announcement of Company executes this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Act. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A. Annex A hereto. The initial expiration date of the Offer shall be the 25th business day 20th Business Day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension determined using Rule 14d-1(g)(3) of the Offer as so extended, shall also be defined herein as an "Expiration Date"SEC). Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change waive or waive modify the Minimum Tender Condition (as defined in Exhibit Annex A)) to the extent that Merger Sub or Parent would purchase 50% or less of the Fully Diluted Shares or to increase the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit Annex A or modify any condition set forth in Exhibit Annex A in any manner adverse to the holders of Company Common StockStockholders, (ivv) except as provided below in this Section 1.01(a), extend the Offer, or (vvi) change modify the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer ifOffer, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions (other than the Minimum Tender Condition) to Merger Sub’s obligation to purchase shares of the Offer shall Company Common Stock are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived waived, including, without limitation, HSR Clearance, (ii) extend the Offer for a period of not more than ten (10) Business Days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the extent permitted by this Agreement; Offer, (Biii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or Offer and (Civ) extend the Offer Offer, one time only, for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) any reason for a period of three to twenty business days in order to acquire not more than fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In addition if at least 90% the otherwise scheduled expiration date of the outstanding shares Offer any condition to the Offer is not satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company Common Stockfor one period of not more than twenty (20) Business Days. In addition, Merger Sub may make available a “subsequent offering period,” in accordance with Rule 14d-11 of the SEC, of not less than ten (10) Business Days. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, (A) as soon as practicable after becoming obligated to purchase shares of Company Common Stock pursuant to the Offer, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (B) on the closing date of the Offer (which shall be not more than five (5) Business Days following the Acceptance Date), deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for all such accepted shares of Company Common Stock and Merger Sub are permitted (C) as soon as practicable following such deposit, cause the Paying Agent to accept and pay for under applicable lawall shares of Company Common Stock so accepted for payment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (AMICAS, Inc.), Agreement and Plan of Merger (Merge Healthcare Inc)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingMerger Agreement, as promptly as reasonably practicable practicable, but in no event later than ten business days after February 23, 1998, Sub shall, and Purchaser shall cause Sub to, commence the date Offer. The obligation of the public announcement Sub to, and of this AgreementPurchaser to cause Sub to, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock Shares and Company Preferred Shares tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date A (any of which, including the Offer shall Minimum Condition (as defined in Exhibit A) may be waived by Sub in its sole discretion) and to the 25th business day following the commencement terms and conditions of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")this Merger Agreement. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject Shares and Company Preferred Shares to be purchased in the Offer, ; (ii) reduce the Common Share Offer Price to be paid pursuant to or the OfferPreferred Share Offer Price, except as otherwise provided in this Merger Agreement; (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the holders of Company Common Stock, Shares or Company Preferred Shares; (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, ; (v) change the form of consideration payable in the Offer Offer; or (vi) otherwise amend any other term of the Offer in any a manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the holders of Company Common StockShares and Company Preferred Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer ifbeyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to exceed 20 business days, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions of the Offer to Sub's obligation to accept for payment, and pay for, Company Common Shares and Company Preferred Shares shall not have been be satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreementwaived; or (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three . Subject to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to of the Offer that are set forth in and this Merger Agreement, promptly after the Expiration DateSub shall, either Parent or Merger and Purchaser shall cause Sub shall to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock Shares and Company Preferred Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept for payment, and pay for under applicable lawfor, pursuant to the Offer as soon as practicable after the expiration of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eastgroup Properties Inc), Agreement and Plan of Merger (Eastgroup Properties Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of subject to the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement conditions of this Agreement, Parent then (i) not later than the first Business Day after execution of this Agreement, LUKOIL Americas and Merger Sub the Company shall commence issue mutually acceptable public announcements regarding the Offer within the meaning execution of the applicable rules this Agreement and regulations of file such announcement with the Securities and Exchange Commission (the "SEC") under cover of Schedule TO and (ii) Merger Sub shall, and LUKOIL Americas shall cause Merger Sub to, as soon as practicable, but in no event later than seven Business Days from and after the date of such announcement, including the date of announcement as the first Business Day in accordance with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer to purchase all of the outstanding shares of Company Common Stock (other than as otherwise provided in this Agreement) at the Price Per Share. The obligations initial expiration date of Parent 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 subject to extension as provided herein. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions consistent with this Agreement. The obligation of Merger Sub to accept for payment, payment and pay for, any for shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify accordance with the terms of the Offer, except that, without the written consent of the Company, Merger Sub this Agreement shall not be subject only to (ix) reduce the there being at least that number of shares of Company Common Stock subject to representing a majority of the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders total issued and outstanding shares of Company Common Stock, Stock on a fully diluted basis (ivthe "Minimum Shares") except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse validly tendered and not withdrawn prior to the holders expiration of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance DateMinimum Condition")) and (y) the satisfaction of the other conditions set forth in Annex A hereto, all any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. Each party agrees that no shares of Company Common Stock validly held by it or any of its Subsidiaries will be tendered and not withdrawn to Merger Sub pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Getty Petroleum Marketing Inc /Md/), Agreement and Plan of Merger (Lukoil Americas Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII VI hereof and none of the events set forth in paragraphs (a) through (e) or (hf) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable practicable, but in no event later than ten six business days after the date of the public announcement of this Agreement, Parent and Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer iffor one or more periods of time (which, at without the scheduled Expiration Datewritten consent of the Company, any of shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer shall set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; Offer or (C) extend the Offer on one or more occasions for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a an aggregate period of three to twenty not more than ten business days in order to acquire at least if the Minimum Tender Condition has been satisfied but fewer than 90% of the outstanding shares of the Company Common StockStock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after expiration of the Expiration DateOffer, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are is permitted to accept and pay for under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Matrix Pharmaceutical Inc/De), 33 Agreement and Plan of Merger (Matrix Pharmaceutical Inc/De)
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable (but in no event later than ten business days after the date of the public announcement of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "“SEC"”)) the Offer at the Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A. A (the “Offer Conditions”). The initial expiration date of the Offer shall be at the 25th time that is one minute following 11:59 p.m., New York City time, on the date that is twenty business day following the commencement days (determined using Rule 14d-1(g)(3) of the Offer Securities Exchange Act of 1934, as amended (together with the initial "Expiration Date," rules and any expiration time and regulations promulgated thereunder, the “Exchange Act”)) after the date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer Condition or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change waive, amend or waive modify the Minimum Tender Condition or the Termination Condition, (as defined in Exhibit A), iv) add to the Offer Conditions or impose any other conditions set forth in Exhibit A on the Offer or amend, modify or supplement any condition set forth in Exhibit A Offer Condition in any manner adverse to the holders of Company Common Stock, (iv) except Stock in their capacity as provided below in this Section 1.01(a), extend the Offersuch, (v) change the form or terms of consideration payable in the Offer Offer, or (vi) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common StockStock in their capacity as such. Notwithstanding the foregoing, Merger Sub may (but shall, and Parent shall not be obligated cause Merger Sub to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer iffor one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company), if at the scheduled Expiration Date, expiration date of the Offer any of the conditions of Offer Conditions (other than the Offer Minimum Tender Condition) shall not have been satisfied or waived waived, until such time as such conditions are shall have been satisfied or waived to (irrespective of whether the extent permitted by this Agreement; Minimum Tender Condition has been satisfied) and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the SEC or the staff thereof or the NASDAQ Capital Market (“Nasdaq”) applicable to the Offer; or (C) provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company); provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. Notwithstanding anything to the contrary herein, if, as of the scheduled expiration date, all of the Offer Conditions are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of shares of Company Common Stock necessary to permit the Merger to be effected without a "meeting of the Company’s stockholders, Merger Sub may provide a “subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept purchase pursuant to the Offer as promptly as practicable after the expiration of the Offer and, in any event, no more than two business days after the Offer Closing Date. The date on which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Offer Closing Date”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and pay for under applicable lawre-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Jazz Pharmaceuticals PLC), Agreement and Plan of Merger (Celator Pharmaceuticals Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A Annex I hereto shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable after the date hereof, but in no event later than ten the fifth business days day after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase all of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any outstanding shares of Company Common Stock at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for shares of Company Common Stock validly tendered pursuant to the Offer are and not subsequently withdrawn shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the “Offer Conditions”). The initial expiration date of the Offer shall be the 25th business day following the commencement of on which Merger Sub “commences” the Offer (within the initial "Expiration meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to as the “Offer Commencement Date," and any expiration time and date established pursuant to an authorized extension of ”. To the Offer as so extendedextent permitted by applicable Law, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve reserves the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of the Offer, except that, that without the written prior consent of the Company, Merger Sub shall not (iA) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number or percentage of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition (as defined in Exhibit AAnnex I), add (D) impose any conditions to the Offer in addition to the conditions set forth in Exhibit A on Annex I, (E) amend or modify any condition set forth the Offer in Exhibit A in any a manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to taken as a whole, or (F) extend the Expiration Date (as defined in Annex I) except as required or permitted by this Section 1.1(a). The Expiration Date shall be the 20th Business Day next following the Offer that Parent and Merger Sub are permitted to accept and pay for Commencement Date (calculated as set forth in Rule 14d-1(a) (3) under applicable lawthe Exchange Act).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nutra Acquisition CO Inc.), Agreement and Plan of Merger (Plethico Pharmaceuticals Ltd.)
The Offer. (a) Subject The parties hereto agree to the conditions of this Agreement cause RDO Tender to commence, and provided that this Agreement shall not have been terminated in accordance with its terms pursuant RDO Tender agrees to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingcommence, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"), on or about April 28, 2003, an offer to purchase for cash all of the issued and outstanding Class A Shares of RDOE (other than those shares held by RDO Tender, RDO Holdings and the RDO Holdings Stockholders), at a price of $6.01 per share, net to the seller in cash, less any required withholding of taxes and without payment of interest. The obligation of RDO Tender to accept for payment and to pay for any Class A Shares tendered in the Offer will be conditioned upon, among other things, there having been validly tendered and not withdrawn prior to the expiration date of the Offer (as such date may be extended pursuant to the terms of the Offer) at least that number of Class A Shares (1) that would, when aggregated with the Class A Shares owned directly or indirectly by RDO Holdings, represent at least 90% of all Class A Shares then outstanding (the "90% Condition") and (2) that represent at least a majority of the total number of Class A Shares outstanding on the date shares are accepted for payment that are not owned by RDO Tender, RDO Holdings and their affiliates and the executive officers of RDOE (the "Majority of the Minority Condition"). The obligations of Parent Offer will also be subject to certain other conditions as described in the Offer to Purchase. Although the 90% Condition and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant the other conditions to the Offer are subject may be waived by RDO Holdings and RDO Tender, the Majority of the Minority Condition may not. Subject to the conditions set forth in Exhibit A. The initial the Offer to Purchase, RDO Holdings and the RDO Holdings Stockholders will cause RDO Tender to accept for payment and pay for all Class A Shares tendered in the Offer as soon as RDO Tender is legally permitted to do so under applicable law, upon the expiration date of the Offer shall be or any extension thereof. Notwithstanding any of the 25th business day following foregoing, Xx. Xxxxxx may decide in his sole discretion at any time prior to the commencement expiration date of the Offer (and for any reason whether to cause RDO Tender to abandon the initial "Expiration Date," and any expiration time and date established pursuant Offer. Any decision whether to an authorized extension of extend the Offer or effect a subsequent offering period will be made solely by Xx. Xxxxxx, as so extended, shall also be defined herein as an "Expiration Date")President of RDO Holdings and RDO Tender. Parent and Merger Sub expressly reserve the right to waive any Any decision whether a condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have has been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted will be made solely by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common StockXx. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchaseXxxxxx, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares President of Company Common Stock validly tendered RDO Holdings and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawRDO Tender.
Appears in 2 contracts
Samples: Rdo Equipment Co, Rdo Equipment Co
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as As promptly as reasonably practicable (but in no event later than ten five business days after the date of the public announcement of this Agreementthe execution hereof), Parent and Merger Sub Acquisition shall commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended, and the rules and regulations of promulgated thereunder (collectively, the Securities and "Exchange Commission Act")) a tender offer (the "SECOffer") for all of the outstanding shares of Company Common Stock (including the Rights) at a price of $15.50 per share of Company Common Stock, net to the seller in cash (such price, or any such higher price per share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of shares of Company Common Stock which represents at least a majority of the Company Common Stock outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms ("fully diluted basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under warrants and outstanding employee stock options). The obligations of Parent and Merger Sub Acquisition to accept for payment, payment and to pay for, for any shares of Company Common Stock validly tendered pursuant on or prior to the expiration of the Offer are and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Exhibit A. Annex A hereto. The initial expiration date of the Offer shall be made by means of an offer to purchase (the 25th business day following "Offer to Purchase") containing the commencement of terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Acquisition shall not amend or waive the Minimum Condition and shall not decrease the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer Price or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce decrease the number of shares of Company Common Stock subject to the Offersought, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify amend any other condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of the Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), Stock without the prior written consent of the Company and in its Company; provided, however, that if on the initial scheduled expiration date of the Offer which shall be 20 business days after the date of the Offer is commenced, the sole and absolute discretioncondition remaining unsatisfied is the failure of the waiting period under the HSR Act (as defined below) to have expired or been terminated, (A) Acquisition shall extend the expiration date from time to time extend until two business days after the Offer if, at the scheduled Expiration Date, any expiration of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any waiting period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange HSR Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On Acquisition shall, on the terms and subject to the prior satisfaction or waiver of the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchasepay for Company Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, as promptly as practicable after however, that if, immediately prior to the initial expiration date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to of the Offer (the "Acceptance Date"as it may be extended), all shares of the Company Common Stock validly tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Stock, Acquisition may extend the Offer one time for a period not to exceed twenty business days, notwithstanding that Parent and Merger Sub all conditions to the Offer are permitted to accept and pay for under applicable lawsatisfied as of such expiration date of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ivex Packaging Corp /De/), Agreement and Plan of Merger (Ivex Packaging Corp /De/)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence amend the Existing Offer within to reflect the meaning terms and conditions of this Agreement, including the applicable rules purchase price of thirty seven dollars ($37.00) per share of Company Common Stock (including the associated Rights), net to the seller in cash, without interest thereon and regulations subject to any required withholding of Taxes (such price, or any higher price offered and paid by Merger Sub in its sole discretion in the Securities Offer, the “Offer Price”), and Exchange Commission to set December 19, 2008 (the "SEC"“Initial Expiration Date”), as the expiration date for the Offer. The obligations obligation of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall only be subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer condition that there shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify validly tendered in accordance with the terms of the Offer, except prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of shares of Company Common Stock that, without together with the written consent shares of Company Common Stock then directly or indirectly owned by Parent, after giving effect to the consummation of the CompanyOffer, represents at least a majority of the voting power of all Fully Diluted Shares on the Share Acceptance Date (as defined herein) (the “Minimum Condition”) and to the other conditions set forth in Annex II (together with the Minimum Condition, the “Offer Conditions”). Merger Sub shall not (or Parent on behalf of Merger Sub) expressly reserves the right to waive, in its sole discretion, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) reduce the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce imposes conditions to the Offer Price in addition to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions those set forth in Exhibit A Annex II, or modify any condition set forth in Exhibit A otherwise amends or modifies the Offer in any manner materially adverse to the holders of Company Common Stock, and (iviii) the Offer may not be extended except as provided below set forth in this Section 1.01(a). Subject to the terms and conditions of this Agreement, extend the Offer, (v) change the form of consideration payable in the Offer shall expire at 5:00 p.m., New York City time, on the Initial Expiration Date (such time, or (vi) otherwise amend such subsequent time to which the expiration of the Offer is extended in any manner adverse to accordance with the holders terms of Company Common Stockthis Agreement, the “Expiration Date”). Notwithstanding the foregoingUnless this Agreement has been terminated in accordance with Section 8.01, Merger Sub (or Parent on behalf of Merger Sub) may (but shall not be obligated to), extend the Offer and the Expiration Date without the consent of the Company and in its sole and absolute discretion, (Ai) from time to time extend the Offer if, if at the scheduled Expiration Date, any of the conditions of the Offer Conditions shall not have been satisfied or waived in writing by Merger Sub (or Parent on behalf of Merger Sub), until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; or (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or . In addition, unless the Agreement has been terminated in accordance with Section 8.01, Merger Sub shall (Cand Parent shall cause Merger Sub to) extend the Offer for a "subsequent offering period" and the Expiration Date from time to time in increments of up to fifteen (as provided by Rule 14d-11 under the Exchange Act15) for a period of three to twenty business days in order to acquire at least 90% upon the Company’s prior written request if, as of the outstanding shares scheduled Expiration Date, any of the Company Common Stock. On the terms and subject to the conditions to the Offer that are Conditions set forth in this Agreementparagraphs (a), promptly after the Expiration Date(b), either (c), (d) and (e) of Annex II shall not have been satisfied; provided, however, that in no event shall Parent or Merger Sub be required to extend the Offer or the Expiration Date beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with Section 8.01, in the event that all of the Offer Conditions other than the Minimum Condition shall have been satisfied as of the scheduled Expiration Date, upon the Company’s prior written request Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer and the Expiration Date by up to an additional thirty (30) days, but not beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with Section 8.01, in the event that all of the Offer Conditions shall have been satisfied as of the scheduled Expiration Date and Parent or Merger Sub fail to accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and in accordance with this Section 1.01, Merger Sub are permitted shall (and Parent shall cause Merger Sub to) extend the Offer and the Expiration Date from time to time in increments of up to fifteen (15) business days upon the Company’s written request; provided, however, that in no event shall Parent or Merger Sub be required to extend the Offer or the Expiration Date beyond the Outside Date. Merger Sub (or Parent on behalf of Merger Sub) may, in its sole discretion, provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), if, as of the commencement of such period, there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL (as defined herein). Subject to the foregoing, including the requirements of Rule 14d-11 under the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable, all shares of Company Common Stock (including the associated Rights) (A) validly tendered and not withdrawn pursuant to the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code (as defined herein), or any provision of state, local or foreign Laws relating to Taxes. To the extent that amounts are so withheld and paid over to the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for under applicable lawall purposes of this Agreement as having been paid to the holder of shares of Company Common Stock in respect of which such deduction and withholding were made by Merger Sub.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alpharma Inc), Agreement and Plan of Merger (King Pharmaceuticals Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as As promptly as reasonably practicable (but in no event later than ten five business days after the date of the public announcement of this Agreementthe execution hereof), Parent and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended, and the rules and regulations of promulgated thereunder (collectively, the Securities and "Exchange Commission Act")) a tender offer (the "SECOffer") for all of the outstanding shares of Company Common Stock (including the Company Preferred Rights) at a price of $20 per share of Company Common Stock, net to the seller in cash (such price, or any such higher price per share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of shares of Company Common Stock (excluding shares of Company Common Stock held in the Company's treasury) which represents at least a majority of the Company Common Stock outstanding on a Fully Diluted Basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms ("Fully Diluted Basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under the Existing Options). The obligations of Parent and Merger Sub to accept for payment, payment and to pay for, for any shares of Company Common Stock validly tendered pursuant on or prior to the expiration of the Offer are and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Exhibit A. Annex A hereto. The initial expiration date of the Offer shall be the 25th business day following the commencement made by means of the Offer an offer to purchase (the initial "Expiration Date," and any expiration time and date established pursuant Offer to an authorized extension of the Offer as so extended, shall also be defined herein as an Purchase"Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify ) containing the terms of set forth in this Agreement, the Offer, except that, without Minimum Condition and the written consent of the Company, other conditions set forth in Annex A hereto. Merger Sub shall not (i) reduce amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of shares of Company Common Stock subject to the Offersought, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify amend any other condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of the Company Common Stock. Notwithstanding Stock without the foregoingprior written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer which shall be twenty business days after the date the Offer is commenced, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act to have expired or been terminated, Merger Sub may (but shall not be obligated to), without extend the consent of the Company and in its sole and absolute discretion, (A) expiration date from time to time extend until two business days after the Offer if, at the scheduled Expiration Date, any expiration of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any waiting period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange HSR Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On Merger Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchaseCompany Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, as promptly as practicable after however, that if, immediately prior to the initial expiration date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to of the Offer (the "Acceptance Date"as it may be extended), all shares of the Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and equals less than 90% of the outstanding Company Common Stock, Merger Sub may extend the Offer two times for a period not to exceed ten business days, notwithstanding that all conditions to the Offer are permitted to accept and pay for under applicable lawsatisfied as of such expiration date of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ti Group PLC), Agreement and Plan of Merger (Walbro Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs subparagraphs (a) through (e) or (hd) of Exhibit A hereto Annex I shall have occurred and be continuing and not have been waived by Parent or be existingMerger Sub, as promptly as reasonably practicable but and, in no event later than any event, within ten business days after (10) Business Days of the date of the public announcement of this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer as promptly as practicable after the date of this Agreement. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”. Each share of Company Common Stock accepted by Merger Sub in accordance with the terms and regulations subject to the conditions of the Securities and Exchange Commission (Offer shall be purchased for cash at the "SEC")Offer Price. The obligations of Parent and Merger Sub to accept for payment, payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for, ) any shares of Company Common Stock validly tendered pursuant on or prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (as it may be extended in accordance with this Agreement) and not properly withdrawn shall be subject to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer (as so extended, shall also it may be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (iextended in accordance with this Agreement) reduce the that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent or any of its Subsidiaries, represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the “Minimum Condition”), and (ii) the other events or conditions set forth in Annex I. Subject to the terms and conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that (i) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended in accordance with this Agreement), any of the events or conditions to the Offer set forth on Annex I shall exist and, subject to the Offerprovisions of this Agreement, shall not have been waived by Merger Sub, Merger Sub expressly reserves the right to (ii) reduce and, in such case, Parent shall cause Merger Sub to), from time to time, extend the Offer Price for additional successive periods of up to twenty (20) Business Days per extension (with the length of such periods to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit Adetermined by Parent), add to until all of the conditions set forth in Exhibit A Annex I are satisfied or modify any condition set forth validly waived in Exhibit A in any manner adverse order to permit the holders of Company Common StockAcceptance Time to occur, and (ivii) except as provided below in this Section 1.01(a), Merger Sub shall extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff of the SEC applicable to the Offer; . If less than 90% of the number of outstanding shares of Company Common Stock are accepted for purchase pursuant to the Offer, Merger Sub may, in its sole discretion (and without the consent of the Company or (C) extend the Offer any other Person), elect to provide for a "one or more subsequent offering period" periods (as provided by of up to twenty (20) Business Days in the aggregate) in accordance with Rule 14d-11 under the Exchange Act) for a period of three . Merger Sub expressly reserves the right from time to twenty business days in order time to acquire at least 90% waive any of the outstanding shares conditions set forth in Annex I (other than the Minimum Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the Company Common Stock. On Offer Price or to make any other changes in the terms and subject to conditions of the conditions to Offer; provided that, without the Offer that are set forth in this Agreementprior written consent of the Company, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to not decrease the Offer (Price, change the "Acceptance Date")form of consideration payable in the Offer, all decrease the number of shares of Company Common Stock validly tendered and not withdrawn pursuant sought to be purchased in the Offer, change, modify or waive the Minimum Condition, impose additional conditions to the Offer that Parent and Merger Sub are or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall remain open or, except for any extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to accept and pay for under applicable lawthe holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Superior Well Services, INC), Agreement and Plan of Merger (Nabors Industries LTD)
The Offer. (a) Subject to the conditions of So long as this Agreement and provided that this Agreement agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs Annex I hereto (aas hereinafter provided) through (e) or (h) of Exhibit A hereto shall have occurred or be existingexist, as promptly as reasonably practicable but in no event later than ten business days after the date of Purchaser shall, and Parent shall cause the public announcement of this AgreementPurchaser to, Parent and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as promptly as practicable after the date hereof, but in any event not later than the fifth business day following the date hereof, the Offer for all outstanding Shares at the Share Offer Price applicable rules to such Shares, net to the seller in cash in accordance with this Agreement. The initial expiration date for the Offer shall be the twentieth business day from and regulations 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 "Initial Expiration Date"). As promptly as reasonably practicable, on the commencement date of the Offer, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC"), with respect to the Offer, the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") (together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase") which shall be mailed to the holders of Shares with respect to the Offer. The obligations Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents and any amendment or supplement thereto prior to the filing thereof with the SEC, and Parent and Purchaser shall consider such comments in good faith. Parent and Purchaser agree to provide to the Company and its counsel any comments which Parent, Purchaser or their counsel may receive from the Staff of the SEC with respect to the Offer Documents promptly after receipt thereof. The obligation of Parent and Merger Sub to accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are will be subject to the satisfaction or waiver (to the extent permitted by this Agreement) of the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer Annex I hereto (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration DateConditions"). Parent and Merger Sub expressly reserve Without the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub the Purchaser shall not (i) reduce decrease the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change price per Share or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer Offer, decrease the number of Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Annex I), impose additional conditions to the Offer, except as otherwise provided herein, extend the Initial Expiration Date or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.any
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Safety Razor Co), Agreement and Plan of Merger (Rsa Acquisition Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VII, then (i) not later than the first Business Day after execution of this Agreement, Parent and none the Company shall issue separate public announcements regarding the execution of the events set forth in paragraphs this Agreement and (aii) through (e) or (h) of Exhibit A hereto shall have occurred or be existingMerger Sub shall, as promptly soon as reasonably practicable practicable, but in no event later than ten business days five Business Days from and after the date of such announcement, including the public date of announcement of this Agreementas the first Business Day in accordance with Rule 14d-2 under the Exchange Act, Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2(a) of the Securities and Exchange Commission (Act) the "SEC")Offer to purchase all of the outstanding shares of Company Common Stock at the Price Per Share. The obligations initial expiration date of Parent 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 Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment, payment and pay for, any for shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant subject only to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the there being at least that number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent representing a majority of the Company total issued and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after Stock on a fully diluted basis on the date on which Parent or Merger Sub (as the case may be) first accepts such shares for payment are purchased pursuant to the Offer (the "Acceptance DateMINIMUM SHARES")) validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION") and (ii) the satisfaction of the other conditions set forth in Annex A hereto, all any of which conditions may be waived by Merger Sub in its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock validly held by the Company or any of its Subsidiaries will be tendered and not withdrawn to Merger Sub pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rental Service Corp), Agreement and Plan of Merger (Rental Service Corp)
The Offer. (aA) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub the Company shall commence the Offer commence, within the meaning of the applicable rules and regulations Rule 13e-4 of the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"), the Offer as promptly as practicable. Company shall accept for payment any and all shares of Company Class A Common Stock (the "Class A Common Shares") which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer if all conditions to the Offer, as set forth on Annex A (the "Offer Conditions"), shall have been satisfied. The obligations obligation of Parent and Merger Sub the Company to accept for payment, purchase and pay for, any shares of Company for Class A Common Stock Shares tendered pursuant to the Offer are shall be subject only to such Offer Conditions and to the conditions set forth in Exhibit A. The initial further condition that a number of Class A Common Shares representing not less than a majority of the Class A Common Shares then outstanding shall have been validly tendered and not withdrawn prior to the final expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration DateMinimum Condition"). Parent Any of the conditions may be waived in whole or in part by the Company in its sole discretion, other than Offer Condition (E) in Annex A and Merger Sub expressly reserve the right to Minimum Condition. The Company may waive any Offer Condition (E) in Annex A only with the consent of the Special Committee that it be waived. The Company may waive the Minimum Condition only with the consent of Kennametal that it be waived and the Company shall waive the Minimum Condition if Kennametal and Acquisition waive the section 6.2(C) condition to their obligation to effect the Offer or Merger. The Company expressly reserves the right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without that no change in the written consent of the Company, Merger Sub shall not Offer may be made: (i) reduce which changes the number of shares of Company Common Stock subject to Per Share Amount payable in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change which changes the form of consideration payable to be paid in the Offer Offer, or (viiii) otherwise amend which reduces the Offer maximum number of Class A Common Shares to be purchased in any manner adverse to the holders of Offer. The Company Common Stock. Notwithstanding the foregoing, Merger Sub may may: (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (Ai) from time to time extend the Offer ifon one or more occasions for up to ten business days for each such extension beyond the then scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then scheduled Expiration Date, expiration date of the Offer any of the conditions of to the Offer Company's obligation to accept for payment and pay for the Class A Common Shares shall not have been be satisfied or waived waived, until such time as such conditions are satisfied or waived (subject to the extent permitted by Kennametal's right to terminate this Agreement; Agreement pursuant to Article 7) and (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three . Subject to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Company shall accept pay for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Class A Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted the Company becomes obligated to accept and pay for under applicable lawpurchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
Appears in 2 contracts
Samples: Merger Agreement (JLK Direct Distribution Inc), Merger Agreement (JLK Direct Distribution Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable practicable, but in no event later than ten five business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. A hereto. The initial expiration date of the Offer shall be January 3, 2001 (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the 25th business day following the commencement Securities Exchange Act of the Offer 1934, as amended (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration DateExchange Act")). Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or to modify the terms of the Offer, except thatin each case in its sole discretion; provided, however, that without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the Offer Price price per Company Common Share to be paid pursuant to the OfferOffer or change the form or time of delivery of consideration, (iii) change amend or waive the Minimum Tender Condition (as defined in Exhibit A), A hereto) or add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stockhereto, (iv) except as provided below in this Section 1.01(a1.1(a), extend the Offer, or (v) change the form of consideration payable in the Offer or (vi) otherwise amend the terms of the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, at any time and from time to time, and, in each case, subject to Section 8.1 hereof, take one or more of the following actions without the consent of the Company and in its sole and absolute discretion, Company: (A) from time to time extend the Offer iffor one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions to the Offer to be satisfied, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions of the Offer shall to Merger Sub's obligation to accept Company Common Shares for payment is not have been satisfied or waived waived, until such time as all such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof that is applicable to the Offer; Offer or (C) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (A) or (B) of this sentence, if, as of such date, all of the conditions to Merger Sub's obligation to accept Company Common Shares for payment (including the Minimum Tender Condition) are satisfied or waived, but the number of Company Common Shares validly tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Shares (determined on a "fully diluted basis for all outstanding stock options, convertible securities and any other rights to acquire Company Common Stock on the date of purchase). Without limiting the rights of Merger Sub to extend the Offer pursuant to the immediately preceding sentence, Parent and Merger Sub agree that if (I) (x) all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, (y) such conditions are reasonably capable of being satisfied within 30 days after the initial expiration date of the Offer and (z) the Company is in compliance with all of its covenants in this Agreement, or (II) any rule, regulation, interpretation or position of the SEC or the staff thereof that is applicable to the Offer requires an extension of the Offer, then Merger Sub shall extend the Offer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions of the Offer to be satisfied, until all such conditions are satisfied or waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the 30th day after the initial expiration date of the Offer, unless otherwise required pursuant to (II) above. Subject to Section 8.1 hereof, Merger Sub may, without the consent of the Company, elect to provide a subsequent offering period" (as provided by period for the Offer in accordance with Rule 14d-11 under the Exchange Act) for a period , following its acceptance of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common StockShares for payment pursuant to the Offer. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall accept for payment and purchase, as promptly as practicable after the date on which Parent or cause Merger Sub (as the case may be) first accepts shares to, pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept and pay for under applicable lawpurchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Minnesota Mining & Manufacturing Co), Agreement and Plan of Merger (Minnesota Mining & Manufacturing Co)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingVIII, as promptly as reasonably practicable but (and in no any event later than ten business days on or before January 8, 2014) after the date of the public announcement of this Agreementhereof, Parent and Merger Acquisition Sub shall commence the Offer (and Parent shall cause Acquisition Sub to) commence, within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Securities Offer, and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger Acquisition Sub to accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer Offer, shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not subject only to: (i) reduce there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Company Common Stock subject to (if any) then owned by Parent or Acquisition Sub represents a majority of the Offershares of Common Stock then outstanding (determined on a fully diluted basis) (collectively, the “Minimum Condition”); (ii) reduce this Agreement not having been terminated in accordance with its terms (the Offer Price to be paid pursuant to the Offer, “Termination Condition”); and (iii) change the satisfaction, or waive waiver by Parent or Acquisition Sub, of the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions and requirements set forth in Exhibit A Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or modify any condition set forth in Exhibit A in any manner adverse obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the holders extent so exercisable, convertible or exchangeable prior to consummation of Company Common Stockthe Merger or exercisable, (iv) except convertible or exchangeable as provided below in this Section 1.01(a), extend a result of the Offer, (v) change the form consummation of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawMerger.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Harland Clarke Holdings Corp), Agreement and Plan of Merger (Valassis Communications Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existing, as promptly as reasonably practicable but in no event later than ten Cardinal shall cause Subcorp to commence, and Subcorp shall, within 12 business days after the date of the public announcement of this Agreementdays, Parent and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (together with the rules and regulations of thereunder, the Securities and “Exchange Commission (Act”)) the "SEC")Offer. The obligations of Parent and Merger Sub Cardinal shall cause Subcorp to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Subcorp shall accept for payment and purchasepayment, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company BLP Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date (as defined in Section 1.1(c)) at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment additional shares of BLP Common Stock validly tendered during any subsequent offering period to the extent Cardinal and Subcorp determine to provide a subsequent offering period in connection with the Offer. Subcorp shall not accept for payment any shares of BLP Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the Expiration Date such number of shares of BLP Common Stock that Parent satisfy the Minimum Condition (as defined in Annex A). Subcorp expressly reserves the right to increase the Per Share Amount and Merger Sub are permitted to accept waive any condition of the Offer, except the Minimum Condition. Without the prior written consent of BLP, Subcorp shall not decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of BLP Common Stock sought to be purchased in the Offer or waive the Minimum Condition. The Per Share Amount shall be paid less any required withholding of Taxes (as defined in Section 5.12(f)), upon the terms and pay for under applicable lawsubject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. BLP agrees that no shares of BLP Common Stock held by BLP or any of its subsidiaries will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Boron Lepore & Associates Inc), Agreement and Plan of Merger (Cardinal Health Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence the Offer (within the meaning of Rule 14d-2 promulgated under the applicable rules Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and regulations shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the "“SEC"”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The obligations Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub to shall, upon the expiration of the Offer, accept for payment, and pay forfor (after giving effect to any required withholding or stock transfer Tax), any all shares of Company Common Stock validly tendered pursuant to the Offer are and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the conditions set forth in Exhibit A. The initial expiration date of the Offer Company or its Subsidiaries shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid tendered pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merrimac Industries Inc), Agreement and Plan of Merger (Crane Co /De/)
The Offer. (a) Subject to the conditions provisions of this Agreement Agreement, and provided that this Agreement shall not have been terminated in accordance with its terms pursuant Section 9.1 and subject to Article VII hereof and none the satisfaction or waiver of each of the events conditions to the Offer set forth in paragraphs Annex A to this Agreement (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingthe "Offer Conditions"), as promptly as reasonably practicable but in no event not later than ten the tenth (10th) business days after day from the date of the public announcement (counting the business day on which such announcement is made) of the execution of this Agreement (which date of announcement shall be no later than the first business day after the execution of this Agreement), Parent and Acquiror shall cause Merger Sub shall to commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")), the Offer at a price equal to the Common Stock Price for each and every share of Company Common Stock. The obligations obligation of Parent and Merger Sub to consummate the Offer, to accept for payment, payment and to pay for, for any shares of Company Common Stock tendered pursuant to the Offer are shall be subject solely to the conditions satisfaction or waiver of the Offer Conditions. It is agreed that the Offer Conditions are for the benefit of Merger Sub and may be asserted by Merger Sub regardless of the circumstances giving rise to any such condition and Merger Sub expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of Company, Merger Sub shall not waive the Minimum Condition (as defined in Annex A) or the condition set forth in Exhibit paragraph (f) of Annex A. The initial time and expiration date of the Offer shall be 12:00 midnight Eastern Standard Time on the 25th date that is the 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by determined using Rule 14d-11 14d-2 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Scheduled Expiration Date" and any date to which the Offer is extended as permitted by Section 1.1(b) shall be referred to herein as the "Extended Expiration Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kulicke & Soffa Industries Inc), Agreement and Plan of Merger (Kulicke & Soffa Industries Inc)
The Offer. (a) Subject to the conditions provisions contained in the following sentence, Merger Sub shall commence (within the meaning of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of Rule 14d-2 under the events set forth in paragraphs (aExchange Act) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement. If the Company: (i) shall have fully cooperated with Parent in connection with the Offer and the preparation of the Offer Documents, including by promptly providing to Parent any comments regarding the Offer Documents from the Company and its advisors, and (ii) shall be prepared to file with the SEC, and to disseminate to holders of Company Common Stock, the Schedule 14D-9 on the date Parent files the Offer Documents with the SEC, then Parent shall cause Merger Sub to, and Merger Sub shall shall, commence the Offer within seven (7) Business Days after the date of this Agreement; provided, however, that Merger Sub shall not be required to commence the Offer if (w) any of the conditions set forth in clauses (a), (b), (c), (g), (h), (j), (k), (l) and (n) of Annex I shall not be satisfied, or (x) the Company shall not be prepared to file immediately with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 (the date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act, is referred to in this Agreement as the Securities and Exchange Commission (the "SEC"“Offer Commencement Date”). The obligations obligation of Merger Sub (and the obligation of Parent and to cause Merger Sub Sub) to accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date satisfaction of or (if permitted) waiver of (y) the Offer condition that there shall be the 25th business day following the commencement validly tendered (not including any shares of the Offer (the initial "Expiration Date," and any expiration time and date established Company Common Stock validly tendered pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent procedures for guaranteed delivery) and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the withdrawn a number of shares of Company Common Stock subject to the Offerthat, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify together with any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant owned by Parent or Merger Sub immediately prior to the Acceptance Time, represents more than 50% of the Adjusted Outstanding Share Number (the “Minimum Condition”), and (z) the other conditions set forth in Annex I hereto (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.Conditions”). For purposes of this Agreement, the “
Appears in 2 contracts
Samples: Agreement and Plan of Merger (U.S. Renal Care Inc), Agreement and Plan of Merger (Dialysis Corp of America)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and none of the events or conditions set forth in paragraphs Annex A (a) through other than clauses (e) or b), (f), (h) of Exhibit A hereto and (i)) shall have occurred or and be existing, Cardinal Health shall cause Subcorp to commence, and Subcorp shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)), as promptly as reasonably practicable but after the date of this Agreement and in no any event later than ten within 10 business days after the date of the public announcement of this Agreement, Parent and Merger Sub the Offer. Cardinal Health shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub cause Subcorp to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Subcorp shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")payment, all shares of Company ALARIS Common Stock that have been validly tendered and not withdrawn pursuant to the Offer that Parent at the earliest time following the initial Expiration Date (as defined in Section 1.1(c)) at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of ALARIS Common Stock validly tendered during any subsequent offering period to the extent Cardinal Health and Merger Sub Subcorp determine to provide a subsequent offering period in connection with the Offer, provided Cardinal Health and Subcorp are permitted to do so pursuant to Section 1.1(c). Subcorp shall not accept for payment any shares of ALARIS Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and pay for under applicable lawnot withdrawn prior to the Expiration Date such number of shares of ALARIS Common Stock that satisfy the Minimum Condition (as defined in Annex A). Subcorp expressly reserves the right to increase the Per Share Amount and to waive any condition of the Offer, except the Minimum Condition. Without the prior written consent of ALARIS, Subcorp shall not decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of ALARIS Common Stock sought to be purchased in the Offer, impose conditions to the Offer in addition to those set forth in Annex A, change or waive the Minimum Condition or, except as provided in Section 1.1(c), extend the expiration of the Offer beyond the initial Expiration Date, or amend any other term of the Offer in a manner materially adverse to the ALARIS Stockholders. The Per Share Amount shall be paid less any required withholding of Taxes (as defined in Section 5.12(h)), upon the terms and subject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. ALARIS agrees that no shares of ALARIS Common Stock held by ALARIS or any of its subsidiaries will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alaris Medical Systems Inc), Agreement and Plan of Merger (Cardinal Health Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant Article IX, Parent shall, or shall cause Offer Sub to, commence an offer to Article VII hereof acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the Company at a price of $72.00 per share of SRH Common Stock. Parent shall, and none shall cause Offer Sub to, accept for payment all shares of SRH Common Stock tendered to Parent or Offer Sub at, or as soon as possible following, the events set forth in paragraphs (a) through (e) Effective Time; provided, that Parent or (h) Offer Sub shall not be required to make payment for, or mail checks with respect to, tendered shares of Exhibit A hereto shall have occurred or be existingSRH Common Stock until the seventh calendar day following the Effective Time, as promptly as reasonably practicable but if the Effective Time occurs after December 17, 1999 in no event later earlier than ten business days after the date January 10, 2000. The obligation of the public announcement of this Agreement, Parent and Merger or Offer Sub shall commence to consummate the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, payment any shares of Company SRH Common Stock tendered pursuant to the Offer are thereto shall be subject only to the conditions set forth in Exhibit A. The initial expiration date Article VIII to this Agreement and to the prior or concurrent consummation of the Merger (collectively, the "Offer shall Conditions"), which are for the sole benefit of Parent and Offer Sub and may be the 25th business day following the commencement asserted by Parent or Offer Sub regardless of the circumstances giving rise to any such condition, or waived by Parent or Offer (the initial "Expiration Date," and Sub in whole or in part at any expiration time and date established from time to time prior to acceptance of shares for payment in its sole discretion; provided, that in no event shall Parent or Offer Sub purchase (or accept for purchase) any shares of SRH Common Stock pursuant to an authorized extension of the Offer as so extendedif the Merger shall not have occurred or concurrently occur. The Company and SRH agree that no shares of SRH Common Stock held by the Company, shall also SRH or any of their respective Subsidiaries will be defined herein as an "Expiration Date")tendered to Parent or Offer Sub pursuant to the Offer. Parent and Merger Offer Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except thatwill not, without the prior written consent of the CompanySRH, Merger Sub shall not (i) reduce decrease or change the number form of shares of Company Common Stock subject to the consideration payable in the Offer, (ii) reduce decrease the Offer Price to be paid number of shares of SRH Common Stock sought pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add impose additional conditions to the Offer or change the Offer Conditions (provided, that Parent or Investor in its sole discretion may waive any such conditions set forth and, in Exhibit A connection therewith, substitute a less restrictive condition) or modify (iv) make any condition set forth other change in Exhibit A in any manner the terms or conditions of the Offer which is materially adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form shares of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company SRH Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Parent and SRH may, without the consent of the Company and in its sole and absolute discretionor SRH, (Ax) from time to time extend the Offer ifOffer, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions of the Offer Conditions shall not have been satisfied or waived waived, until such time as such all conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bxi) extend the Offer for any period required by any statute, rule, regulation, interpretation or position of the SEC any Governmental Authority applicable to the Offer; or , and (Cxii) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) any reason on one or more occasions for a period an aggregate of three to twenty not more than 15 business days in order beyond the latest expiration date that would otherwise be permitted under clauses (x) and (xi) of this sentence. Subject to acquire at least 90% of the outstanding shares of the Company Common Stock. On Offer Conditions and the terms and subject to the conditions to the Offer that are set forth in of this Agreement, promptly after the Expiration DateParent shall, either and Parent or Merger shall cause Offer Sub shall to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company SRH Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer; provided, that Parent and Merger or Offer Sub are permitted shall not be required to accept and pay for under applicable lawmake payment for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000.
Appears in 2 contracts
Samples: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable (but in no event later than ten business days (10) Business Days after the date of the public announcement of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of under the applicable rules and regulations of the Securities and Exchange Commission (the "“SEC"”). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A. B (the “Offer Conditions”). The initial expiration date of the Offer (the “Initial Expiration Date”) shall be midnight (New York City time) on the 25th business day twentieth (20th) Business Day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension determined using Rule 14d-1(g)(3) of the Offer Securities Exchange Act of 1934, as so extendedamended (together with the rules and regulations promulgated thereunder, shall also be defined herein as an "Expiration Date"the “Exchange Act”)). Parent and Merger Sub expressly reserve reserves the right to waive waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (iA) reduce the number of shares of the Company Common Stock subject to the Offer, (iiB) reduce the Offer Price to be paid pursuant to the Offerexcept in accordance with Section 1.1(e), (iiiC) change waive or waive amend the Minimum Tender Condition (as defined in Exhibit A)Condition, add to the conditions set forth in Exhibit A Offer Conditions or modify any condition set forth in Exhibit A Offer Condition in any manner adverse to the holders of the Company Common Stock, (ivD) except as otherwise provided below in this Section 1.01(a1.1(a), extend the Offer, (vE) change the form of consideration payable in the Offer or (viF) otherwise amend the Offer in any manner adverse to the holders of the Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; , but not beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer any Offer Condition is not satisfied (or (Cto the extent permitted hereby, waived) and until such time as such conditions are satisfied, Merger Sub may, in its sole discretion, without the consent of the Company, or if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for a "one (1) or more occasions, in consecutive increments between two (2) and ten (10) Business Days each, with the length of such period to be determined by Merger Sub or, in the event such extension is requested by the Company, such period between two (2) and (10) Business Days as the Company requests (or in any event such other period as the parties hereto may agree) (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the earliest to occur of (i) the valid termination of this Agreement in accordance with Article 9 and (ii) the Outside Date. Merger Sub may, in its sole discretion, make available one (1) or more “subsequent offering period" (as provided by periods”, in accordance with Rule 14d-11 under the Exchange Act, of not less than three (3) Business Days and not more than twenty (20) Business Days in the aggregate for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stockall subsequent offering periods. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall accept for payment and purchase, as promptly as practicable after the date on which Parent or cause Merger Sub to, accept and pay for (as the case may be) first accepts shares for payment subject to any withholding of Tax pursuant to the Offer (the "Acceptance Date"Section 4.2(f), ) all shares of the Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept and pay for under applicable lawpurchase pursuant to the Offer promptly after the expiration of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Engility Holdings, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 9.1, as promptly as reasonably practicable possible but in no event later than ten five (5) business days after the date of the public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub GP shall cause Acquisition to commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"). The obligations of Parent , the Offer; and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant cause Acquisition to the Offer are subject use its best efforts to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of consummate the Offer, except thatincluding, without the written consent of the Companylimitation, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined engaging an information agent in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stockconnection therewith. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Acquisition shall accept for payment issued and purchaseoutstanding shares of common stock, as promptly as practicable after $0.001 par value of the date on which Parent or Merger Sub Company (as the case may be) first accepts shares for payment pursuant to the Offer (individually a "Share" and collectively, the "Acceptance DateShares"), all shares of Company Common Stock ) together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that Parent and Merger Sub are permitted all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for under applicable lawShares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the other conditions set forth in Article 7. Acquisition expressly reserves the right to waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that Parent, GP and Acquisition agree that no change may be made without the written consent of the Company which decreases the Per Share Amount, 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 reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), 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 Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by 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. 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.
Appears in 2 contracts
Samples: Merger Agreement (Ion Beam Applications S A), Merger Agreement (Sterigenics International Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII 8 hereof and none that no event shall have occurred and be continuing that, had the Tender Offer been commenced, would give rise to a right to terminate the Tender Offer pursuant to any of the events conditions set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing1.2-E, as promptly as reasonably practicable (or by such other date as the Parties may mutually agree in writing), but in no event later than ten business days after 10 Business Days following the date of the public announcement of this Agreement, Acquisition shall, and Parent and Merger Sub shall commence the Offer cause Acquisition to, commence, within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three , the Tender Offer by offering to twenty business days in order to acquire at least 90% purchase all of the outstanding shares of Common Stock, subject to the Minimum Condition, for an amount in cash per share (the “Tender Offer Price”) equal to 87% of the book value per share of Common Stock (“BVPS”), as of 5:00 P.M. New York City time on the date that is ten (10) Business Days prior to the expiration of the Tender Offer (the “Calculation Date”). BVPS shall be calculated by the Company, subject to the review and approval of the Special Committee, using the following data: (i) the market value of the Company’s agency securities and derivatives as of the Calculation Date, (ii) the appraised value of the Company’s non-agency securities as of the Calculation Date or the most recent prior date as of which such value can be determined, (iii) cash balances in the Company’s bank accounts as of the Calculation Date, (iv) the Company's repurchase agreement balances and interest payable to repurchase counterparties as of the Calculation Date, and (v) any other tangible assets or liabilities determined in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including accruals, as of the Calculation Date, less $1.0 million to account for the Company's expenses related to the Transactions not included in the above-referenced accruals. B VPS shall be calculated as set forth on Schedule 1.2 and shall be certified by an authorized representative of the Company Common Stockas true and accurate in all material respects. On Estimates of BVPS shall be calculated as of 5:00 P.M., New York City time and posted to the Company’s website as soon as reasonably practicable on the date that the Tender Offer is commenced and on every Business Day thereafter until the Calculation Date. Thereafter, through the Expiration Date (as defined below), the Tender Offer Price shall be posted on the Company’s website. The Tender Offer shall be made by means of an offer to purchase that describes the terms and subject to conditions of the conditions to the Tender Offer that are set forth in accordance with this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Javelin Mortgage Investment Corp.), Agreement and Plan of Merger (Armour Residential REIT, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 11 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existing, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, as promptly as reasonably practicable after the date hereof (but in no event later than ten business days the fifth Business Day after the date of the public announcement of the terms of this Agreement), Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2(a) of the Securities and Exchange Commission 1934 Act), an offer (the "SECOffer"). The obligations ) to purchase (x) any and all of Parent and Merger Sub to accept for payment, and pay for, any the outstanding shares of Company Common Class A Stock tendered pursuant to for a purchase price of $64.00 per share (the "Class A Offer are Price") and (y) any and all (subject to the Minimum Condition (as defined below)) of the outstanding shares of Company Class B Stock for a purchase price of $6.40 per share (the "Class B Offer Price" and, together with the Class A Offer Price, the "Offer Price"), in each case, net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in Exhibit A. this Agreement. The initial expiration date of the Offer shall be the 25th business day following twentieth Business Day from and after the commencement date the Offer is commenced (the "Initial Expiration Date"). The obligation of Merger Subsidiary to accept for payment, purchase and pay for any shares of Company Stock tendered pursuant to the Offer shall be subject, except as provided in Section 2.01(b), only to the satisfaction of (i) the condition that at least 45,815,000 shares of Company Class B Stock (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events) (less any shares of Company Class B Stock owned by Parent or Merger Subsidiary or any Affiliate of Parent or Merger Subsidiary on the date such shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the expiration of the Offer (the initial "Expiration Date," Minimum Condition") and any expiration time and date established pursuant to an authorized extension of (ii) the Offer as so extendedother conditions set forth in Annex A hereto; provided, shall also be defined herein as an "Expiration Date"). Parent and however, that Merger Sub Subsidiary expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth (other than the Minimum Condition) and to make any change in this Agreementthe terms or conditions of the Offer (other than the Minimum Condition) in its sole discretion, promptly after subject to Section 2.01(b). Notwithstanding the Expiration Dateprevious sentence, either Parent or Merger Sub shall accept for payment Subsidiary may waive the Minimum Condition so long as (x) it has irrevocably waived all other conditions to the Offer (and purchasemay, as promptly as practicable after a legal matter, irrevocably waive such conditions and otherwise purchase shares of Company Stock pursuant to the date on which Offer), (y) Parent has irrevocably exercised or Merger Sub irrevocably committed to exercise the Option and (as z) the case may be) first accepts shares for payment of Company Stock acquired pursuant to the Offer and through such Option exercise would satisfy the Minimum Condition (such event being referred to as a "Constructive Satisfaction of the "Acceptance DateMinimum Condition"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Central Newspapers Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 7.1 and none of the events or conditions set forth in paragraphs Annex A (athe "Offer Conditions") through (e) or (h) of Exhibit A hereto shall have occurred or and be existing, as promptly as reasonably practicable practicable, but in no event later than ten business days five (5) Business Days after the date of the public announcement of the execution of this Agreement, Parent and Merger Sub Acquisition shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")), the Offer for all the issued and outstanding shares of Company Common Stock, at the Per Share Amount. Acquisition shall accept for payment all outstanding shares of Company Common Stock which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligations obligation of Parent and Merger Sub Acquisition to accept for payment, purchase and pay for, any for shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition subject only to the Offer or modify Conditions, including the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the condition that a number of shares of Company Common Stock subject representing that number of shares of Company Common Stock which would equal more than fifty percent (50%) of the shares of Company Common Stock then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Acquisition expressly reserves the right to increase the price per share of Company Common Stock payable in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until to make any other changes in the terms and conditions of the Offer (PROVIDED that, unless previously approved by the Company (such time as such approval to be obtained from the Company Board) in writing, no change may be made which decreases the Per Share Amount payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares of Company Common Stock to be purchased in the Offer, which imposes conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend Offer in addition to the Offer for any period required by any rule, regulation, interpretation Conditions or position of which broadens the SEC applicable scope thereof). The Per Share Amount shall be paid net to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period seller in cash, LESS any required withholding of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On taxes, upon the terms and subject to such conditions of the conditions to the Offer Offer. The Company agrees that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all no shares of Company Common Stock validly held by the Company or any of its subsidiaries will be tendered and not withdrawn pursuant to in the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.Offer. "
Appears in 1 contract
Samples: Agreement and Plan of Merger (Huntsman Packaging Corp)
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAnnex I hereto, as promptly as reasonably practicable after the date hereof following the public announcement of the terms of this Agreement (but in no event later than ten business days five Business Days after the date of the public announcement of this Agreementhereof), Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission an offer (the "SECOFFER"). The obligations ) to purchase all of Parent and Merger Sub to accept for payment, and pay for, any the outstanding shares of Company Common Stock tendered pursuant at a price for each share of Company Common Stock of $50, net to the Offer are subject seller in cash, and a number of shares of Parent Common Stock equal to the conditions set forth in Exhibit A. Exchange Ratio. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition subject only to the Offer or modify condition that there shall be validly tendered in accordance with the terms of the Offer, except prior to the expiration date of the Offer and not withdrawn, a number of shares of Company Common Stock that, without together with the shares of Company Common Stock then owned by Parent and/or Merger Sub, represents at least two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis (the "MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto. Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that (i) the Minimum Condition may be amended or waived only with the prior written consent of the CompanyCompany and (ii) no change may be made that changes the form of consideration to be paid, Merger Sub shall not (i) reduce decreases the price per share of Company Common Stock or the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce imposes conditions to the Offer Price in addition to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions those set forth in Exhibit A Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (which shall be the 20th Business Day after the commencement of the Offer) or modify makes any condition set forth in Exhibit A in any manner other change which is adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionCompany, (A) from time Merger Sub shall have the right to time extend the Offer (i) for one or more periods (not in excess of 10 Business Days each) but in no event ending later than September 30, 2000 if, at the scheduled Expiration Dateor extended expiration date of the Offer, any of the conditions of to the Offer shall not have been satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; and (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law. If any of the conditions to the Offer is not satisfied or waived on any scheduled expiration date of the Offer, at the request of the Company, Parent shall cause Merger Sub to, and Merger Sub shall, extend the Offer, if such condition or conditions could reasonably be expected to be satisfied, from time to time until such conditions are satisfied or waived; or (C) provided that Merger Sub shall not be required to extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under beyond September 30, 2000. Subject to the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On foregoing and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause it to, accept for payment and purchasepay for, as promptly as practicable after the date on which Parent or Merger Sub (as expiration of the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. If Merger Sub does not accept for payment the shares of Company Common Stock in the Offer that on the initial expiration date of the Offer by virtue of the failure of any of the regulatory conditions to the Offer specified in clause (i)(B) of the preamble to Annex I or clauses (c) or (d) of Annex I to be satisfied, Parent and Merger Sub are permitted hereby agree to accept pay to the holders of shares of Company Common Stock cash interest at a rate of 8.00% per annum (calculated on the basis of a 365 day calendar year) on the $75 per share offer consideration from and pay after the initial expiration date of the Offer until the acceptance for under applicable lawpayment of shares of Company Common Stock validly tendered and not withdrawn in the Offer. "EXCHANGE RATIO" (as the same may be adjusted pursuant to Section 4.01(d)) shall be equal to (i) $25 divided by the Average Price (as defined below), if the Average Price is greater than or equal to $34.00; or (ii) .7353, if the Average Price is less than $34.00. "AVERAGE PRICE" means the average (rounded to the nearest 1/10,000) of the volume weighted averages (rounded to the nearest 1/10,000) of the trading prices of Parent Common Stock on the NYSE, as reported by Bloomberg Financial Markets (or such other source as the parties shall agree in writing), for the 15 Trading Days randomly selected by lot by Parent and the Company together from the 30 consecutive Trading Days ending on the third Trading Day immediately preceding the date on which all of the conditions to the Offer set forth in Annex I hereto have been satisfied or waived.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Champion International Corp)
The Offer. (a) Subject The Merger Agreement provides that Merger Subsidiary will commence the Offer and that, upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingOffer, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock Subsidiary will purchase all Shares validly tendered pursuant to the Offer are subject Offer. The obligation of Merger Subsidiary to accept for payment and pay for any Shares validly tendered prior to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement is conditioned upon satisfaction of the Offer (Minimum Condition and the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension satisfaction or waiver of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition conditions described in Annex A to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall Agreement. The Merger Agreement provides that Merger Subsidiary may not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change amend or waive the Minimum Tender Condition (as defined in Exhibit A)Condition, add to or decrease the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockOffer Price, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, add to or change conditions to the Offer or (vi) otherwise amend make any other change in the terms or conditions of the Offer in any manner adverse to without the holders prior written consent of Company Common Stockthe Company. Notwithstanding the foregoingforegoing provisions, Merger Sub if on the scheduled expiration of the Offer (as it may (but shall not be obligated toextended), without all conditions to the consent of Offer have not been satisfied or waived, the Company and Offer may be extended from time to time, unless any applicable waiting period under the HSR Act has not expired or been terminated, in its sole and absolute discretion, (A) which case the Offer will be extended from time to time extend until the Offer if, at the scheduled Expiration Date, any earlier of the conditions consummation of the Offer shall not have been satisfied or waived until such time as such conditions August 28, 2000. If an insufficient number of Shares are satisfied or waived tendered pursuant to this Offer prior to the extent permitted by this Agreement; (B) extend Expiration Date and the Merger Agreement is terminated as a consequence of the failure to satisfy the Minimum Condition, the Company has agreed to pay Parent a termination fee of $1,000,000. STOCK OPTION AGREEMENT. The Merger Agreement provides that, if following a Subsequent Offering Period, if any, Merger Subsidiary has acquired Shares purchased in the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least and such Shares represent less than 90% of the Shares outstanding shares on a fully diluted basis, Parent, Merger Subsidiary and the Company will enter into a stock option agreement, on customary terms, pursuant to which the Company will grant to Merger Subsidiary an option to purchase that number of Shares equal to the number of Shares that, when added to the number of Shares owned by Xxxxxx Xxxxxxxxxx and its affiliates immediately following expiration of the Company Common Stock. On Subsequent Offering Period, results in Merger Subsidiary's beneficially owning 90% of the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date Shares then outstanding on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawa fully diluted basis.
Appears in 1 contract
Samples: Kenny Industrial Services LLC
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (hf) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or Aor modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Information Resources Inc)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing--------- Agreement, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this AgreementSeptember 29, 1995, Sub shall, and Parent and Merger shall cause Sub shall commence the Offer to, commence, within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act (as hereinafter defined), the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Sub to, and of Parent to cause Sub to, commence the Offer and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. A and to the --------- terms and conditions of this Agreement. The initial expiration date of the Offer shall be the 25th 20 business day days following the commencement of the Offer (Offer. Without the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Company --------- Common Stock subject to the Offer, (iiiii) reduce the Offer Price price per share of Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferOffer if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer Offer, or (vi) otherwise amend amend, add or waive any term or condition of the Offer (including the conditions set forth in Exhibit A) in any manner adverse to that would --------- adversely affect the holders of Company Common Stockor its stockholders. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer if, (i) if at the then scheduled Expiration Date, expiration date of the Offer any of the conditions to Sub's obligation to accept for payment and pay for shares of the Offer Common Stock shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreementwaived; (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer; or (Ciii) extend if all Offer --- conditions are satisfied or waived but the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period number of three to twenty business days in order to acquire at least shares of Common Stock tendered is less than 90% of the then outstanding number of shares of the Company Common Stock, for an aggregate period of not more than 15 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence. On Subject to the terms and subject to the conditions to of the Offer that are set forth in this and the Agreement, promptly after the Expiration DateSub shall, either and Parent or Merger shall cause Sub shall accept to, pay for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawas soon as practicable after the expiration of the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof XI and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto nothing shall have occurred or be existingthat, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence had the Offer within been commenced, would give rise to a right to terminate the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered Offer pursuant to the Offer are subject to any of the conditions set forth in Exhibit A. paragraph (b) of Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the 0000 Xxx) the Offer to purchase any and all of the outstanding Shares at the Offer Price, less any withholding Taxes. Merger Sub’s obligation to accept for payment and pay for any Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately 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/or Merger Sub, represents at least a majority of the total number of Shares outstanding on a fully diluted basis (assuming conversion or exercise of all derivative securities or other rights to acquire Company Common Stock regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that, without the prior consent of the Company, (i) the Minimum Condition may not be waived or amended and (ii) no change may be made 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, imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I in any manner materially adverse to the holders of Shares. The initial expiration date of the Offer shall be the 25th business day following the twentieth (20th) Business Day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the initial "Expiration Date," and any 0000 Xxx) (such date, or such subsequent date to which the expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent is extended pursuant to and Merger Sub expressly reserve the right to waive any condition to the Offer or modify in accordance with the terms of this Agreement, the Offer“Expiration Date”). Notwithstanding the foregoing, except that, (x) without the written consent of the Company, Merger Sub shall not (i) reduce have the number of shares of Company Common Stock subject right to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date of the Offer; or (C) , Merger Sub shall, subject to the rights of the parties in Article XI, extend the Offer for one or more periods (each in the reasonable judgment of Merger Sub for the minimum period of time reasonably expected by the Merger Sub to be required to satisfy such conditions but in any event not in excess of twenty (20) Business Days each) until such conditions are satisfied or waived; provided, in each case, (A) if, at the initial Expiration Date all of the conditions to the Offer, except for the Minimum Condition, are satisfied or have been waived, Merger Sub shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date for one or more additional periods not to exceed an aggregate of twenty (20) Business Days, and (B) in no event shall Merger Sub be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a "subsequent offering period" period (as provided by “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares 1934 Act. Merger Sub shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article XI hereof. If this Agreement is terminated pursuant to Article XI, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer and shall not acquire Shares pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated pursuant to Article XI prior to the acquisition of Shares in the Company Common StockOffer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof. On Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause it to, accept for payment and purchasepay for, as promptly as practicable after the date on which Parent or Merger Sub (as expiration of the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")Offer, all shares of Company Common Stock Shares (i) validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub (ii) validly tendered in the Subsequent Offering Period (the time at which Shares are permitted to accept and pay first accepted for payment under applicable lawthe Offer, the “Acceptance Time”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ralcorp Holdings Inc /Mo)
The Offer. (a) Subject to Parent shall cause Purchaser to, and Purchaser shall, commence (within the conditions meaning of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of Rule 14d-2 under the events set forth in paragraphs (aExchange Act) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly soon as reasonably practicable after the date of this Agreement, but in no event later than ten business days the fifteenth (15th) Business Day after the date of the public announcement of this Agreement. Notwithstanding the foregoing, Parent and Merger Sub Purchaser shall not be required to commence the Offer if the Company shall not be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9. The date on which Purchaser commences the Offer, within the meaning of Rule 14d-2 under the applicable rules Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.” The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that is disseminated to any and regulations all of the Securities holders of shares of Company Common Stock and Exchange Commission contains the terms and conditions set forth in this Agreement and in Annex A. In the Offer, each share of Company Common Stock accepted by Purchaser in accordance with the terms of the Offer shall, subject to the adjustments set forth in Section 2.1(d) and Section 2.1(g), be exchanged for the right to receive the Transaction Consideration. Subject to the prior satisfaction of the Minimum Tender Condition and the satisfaction, or waiver by Parent or Purchaser, of the other Offer Conditions (to the "SEC"extent such waiver is permitted by Section 1.1(c). The obligations ), after the expiration of the Offer (as it may extended in accordance with Section 1.1(d)), Purchaser shall (and Parent and Merger Sub to shall cause Purchaser to) accept for payment, payment all shares of Company Common Stock validly tendered (and pay for, any not withdrawn) pursuant to the Offer (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered for settlement or satisfaction of such guarantee) as soon as practicable after Purchaser is permitted to do so under applicable Law (the Offer “Acceptance Time”), and promptly (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) pay for all shares of Company Common Stock that are subject validly tendered and not validly withdrawn in the Offer. Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds and shares of Parent QVC Series A Stock necessary to pay for any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extendedOffer; provided, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offerhowever, except that, that without the prior written consent of the Company, Merger Sub Purchaser shall not (i) reduce accept for payment or pay for any shares of Company Common Stock if, as a result, Purchaser would acquire less than the number of shares of Company Common Stock subject necessary to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive satisfy the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of Condition. The consideration payable in the Offer or (vi) otherwise amend the Offer payable in any manner adverse to the holders respect of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares each share of Company Common Stock validly tendered and not withdrawn pursuant in the Offer shall be paid net to the Offer that holder thereof in cash and shares of Parent QVC Series A Stock, subject to reduction for any applicable withholding taxes payable in respect thereof. The Company shall register (and Merger Sub are permitted shall instruct its transfer agent to accept and pay register) the transfer of the shares of Company Common Stock accepted for under applicable lawpayment by Purchaser effective immediately after the Acceptance Time.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Zulily, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as As promptly as reasonably practicable but (and, in no event later than ten business days any event, within five (5) Business Days) after the date of the public announcement execution of this AgreementAgreement by all parties hereto), Acquisition Sub shall, and Parent and Merger shall cause Acquisition Sub shall commence the Offer to, commence, within the meaning of Rule 14d-2 promulgated under the applicable rules and regulations of Exchange Act, the Securities and Exchange Commission (the "SEC")Offer. The obligations of Acquisition Sub to, and of Parent and Merger to cause Acquisition Sub to to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. Annex I (the “Offer Conditions”). The initial expiration date of the Offer shall be initially expire at 11:59 p.m. (New York City time) on the 25th business day date that is twenty (20) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"Exchange Act). Parent and Merger Acquisition Sub expressly reserve reserves the right to waive waive, in whole or in part, any condition to the Offer Condition or modify the terms of the Offer; provided, except however, that, without the written consent of the Company, Merger Acquisition Sub shall not, and Parent shall not permit Acquisition Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change amend, modify or waive the Minimum Tender Condition Condition, (as defined in Exhibit A), iv) add to the conditions set forth in Exhibit A Offer Conditions or amend, modify or supplement any condition set forth in Exhibit A Offer Condition in any manner adverse to the holders any holder of Company Common Stock, (ivv) except as expressly provided below in this Section 1.01(a2.1(a), terminate, extend or otherwise amend or modify the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer or Offer, (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders any holder of Company Common StockStock or (viii) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. Notwithstanding any other provision of this Agreement to the foregoingcontrary, Merger Acquisition Sub may (but shall, and Parent shall not be obligated cause Acquisition Sub to), without the consent of the Company and in its sole and absolute discretion, (Ai) from time to time extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if, at any then-scheduled expiration of the scheduled Expiration DateOffer, any of Offer Condition (other than the conditions of the Offer Minimum Tender Condition) shall not have been satisfied or waived waived, until such time as each such conditions are condition shall have been satisfied or waived to the extent permitted by this Agreement; and (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or (C) provided, however, that Acquisition Sub shall not be required to extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under beyond the Exchange Act) for a period Termination Date. Notwithstanding any other provision of three this Agreement to twenty business days in order to acquire the contrary, if, at least 90% any then-scheduled expiration of the outstanding shares Offer, each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, then Acquisition Sub may and, if requested by the Company, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer by increments of five (5) Business Days; provided, however, that the Company Common Stockmaximum number of days that the Offer may be extended pursuant to this sentence shall be twenty (20) Business Days unless requested or approved by the Company; provided, further, that Acquisition Sub shall not be required to extend the Offer beyond the Termination Date. On Upon the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration DateAcquisition Sub shall, either and Parent or Merger shall cause Acquisition Sub shall to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock validly tendered and not withdrawn that Acquisition Sub becomes obligated to purchase pursuant to the Offer that Parent promptly after the expiration of the Offer. Payment of shares of Company Common Stock by Acquisition Sub pursuant to and Merger Sub subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.1(a)), unless this Agreement is validly terminated in accordance with Section 8.1. If (i) at any then-scheduled expiration of the Offer, (x) each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived, (y) the Minimum Tender Condition shall not have been satisfied and (z) no further extensions or re-extensions of the Offer are permitted or required pursuant to accept this Section 2.1(a) or (ii) this Agreement is terminated pursuant to Section 8.1, then, in each case, Acquisition Sub shall promptly (and, in any event, within twenty four (24) hours of such termination), irrevocably and pay for under applicable lawunconditionally terminate the Offer. The termination of the Offer pursuant to clause (i) of the immediately preceding sentence is referred to in this Agreement as the “Offer Termination,” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date.” If the Offer is terminated or withdrawn by Acquisition Sub, or this Agreement is terminated in accordance with Section 8.1, Acquisition Sub shall promptly return, and shall cause any depository acting on behalf of Acquisition Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Steinway Musical Instruments Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 11.01 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable practicable, but in no event later than three business days, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"), an amended Offer to Purchase (the "Amended Offer to Purchase") and, if necessary, the related letter of transmittal and any related summary advertisement (the Form TO/A, the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "Offer Documents") to reflect, among other things, an increase in the per share price to be paid in the Offer to $30.00 and, if necessary, an extension of the currently scheduled expiration date to allow the Offer to remain open for ten business days after from the date of the public announcement such increase. The obligation of this Agreement, Parent and Merger Sub shall commence Co. to consummate the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, payment and to pay for, any for shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be subject only to (i) the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, condition that there shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify validly tendered in accordance with the terms of the Offer, except prior to the expiration date of the Offer and not withdrawn, a number of shares that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., represents 50.1% of the shares of Company Common Stock outstanding (the "Minimum Condition") and (ii) the other conditions set forth in Annex I hereto. Merger Co. expressly reserves the right to waive any such condition (other than the Minimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company Common Stock Amount. Notwithstanding the foregoing, Merger Sub shall not no change may be made which (i) reduce decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) increases the Maximum Amount or the Minimum Condition, (iv) reduces the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price sought to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined purchased in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change imposes conditions to the form Offer in addition to those set forth in Annex I hereto, (vi) except as specifically provided for in this Section 2.01(a), extends the expiration date of consideration payable in the Offer or (vivii) otherwise amend alters or amends any term of the Offer in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing; provided, Merger Sub may (but shall not be obligated to)however, without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend that the Offer if, at the scheduled Expiration Date, may be extended for any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived period to the extent permitted required by this Agreement; (B) extend the Offer for any period required law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or (C) extend . Parent and Merger Co. shall comply with the Offer for a "subsequent offering period" (as provided by Rule 14d-11 obligations respecting prompt payment and announcement under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , and, without limiting the generality of the outstanding shares of the Company Common Stock. On foregoing, subject to the terms and conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer that are set forth in have not been satisfied or waived as permitted pursuant to this Agreement, promptly after each such extension not to exceed (unless otherwise consented to in writing by the Expiration Date, either Parent Company) the lesser of 10 additional business days or such fewer number of days that Merger Sub shall accept for payment and purchase, as promptly as practicable after Co. reasonably believes are necessary to cause the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant conditions to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.be satisfied. Except as provided
Appears in 1 contract
The Offer. (a) Subject The Merger Agreement contemplates the commencement of the Offer and sets forth the conditions to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none consummation of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date Offer. For a description of the public announcement Offer conditions, see "--Certain Conditions of this Agreementthe Offer" below. Assuming the prior satisfaction or waiver of the Offer Conditions, Parent and Merger Sub shall commence will cause the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub Purchaser to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify accordance with the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that as soon as practicable after the Expiration Date or any extension thereof. If all conditions to the Offer have been satisfied or waived and Purchaser extends the Expiration Date because less than 90% of the Shares then issued and outstanding (including the Shares owned by Parent) have been tendered in the Offer, Shares will no longer have any withdrawal rights and any Shares so tendered will be accepted for payment and paid for by the Purchaser and the Purchaser will extend the Offer for an aggregate period not to exceed 20 business days. THE MERGER The Merger Agreement provides that, subject to the conditions of the Merger Agreement, at the Effective Time, the Purchaser will be merged with and into the Company. As a result of the Merger, the Company will become a wholly owned subsidiary of Parent. In the event the Purchaser acquires at least 90% of the Shares in the Offer, Parent may effect the Merger without the approval of the Company's stockholders under the DGCL. CONVERSION OF SHARES At the Effective Time, by virtue of the Merger and without any action on the part of any stockholder, each Share (except Shares held in the Company treasury and Shares owned by Parent and its wholly owned Subsidiaries) issued and outstanding immediately before the Effective Time will be converted into the right to receive the Merger Sub are permitted to accept Consideration, or such higher per share amount as is paid in the Offer. Each Share owned by Parent or any wholly owned Subsidiary of Parent immediately before the Effective Time will not be cancelled, and pay for under applicable lawwill be converted into one share of Surviving Corporation Common Stock.
Appears in 1 contract
Samples: Agreement and Plan of Merger (BHR North America Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingVIII, as promptly as reasonably practicable but (and in no any event later than ten business days on or before September 18, 2015) after the date of the public announcement of this Agreementhereof, Parent and Merger Acquisition Sub shall commence the Offer (and Parent shall cause Acquisition Sub to) commence, within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Securities Offer, and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger Acquisition Sub to accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer Offer, shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not subject only to: (i) reduce there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Company Common Stock subject to (if any) then owned by Parent or its subsidiaries, represents a majority of the Offershares of Common Stock then outstanding (determined on a fully diluted basis as described below) (collectively, the "Minimum Condition"); (ii) reduce this Agreement not having been terminated in accordance with its terms (the Offer Price to be paid pursuant to the Offer, "Termination Condition"); and (iii) change the satisfaction, or waive waiver by Parent or Acquisition Sub, of the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions and requirements set forth in Exhibit A Annex I (together with the Minimum Condition and the Termination Condition, the "Offer Conditions"). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or modify any condition set forth in Exhibit A in any manner adverse obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the holders extent so exercisable, convertible or exchangeable prior to consummation of Company Common Stockthe Merger or exercisable, (iv) except convertible or exchangeable as provided below in this Section 1.01(a), extend a result of the Offer, (v) change the form consummation of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawMerger.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Millennial Media Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 9.1, as promptly as reasonably practicable possible but in no event later than ten five (5) business days after the date of the public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub GP shall cause Acquisition to commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"). The obligations of Parent , the Offer; and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant cause Acquisition to the Offer are subject use its best efforts to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of consummate the Offer, except thatincluding, without the written consent of the Companylimitation, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined engaging an information agent in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stockconnection therewith. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Acquisition shall accept for payment issued and purchaseoutstanding shares of common stock, as promptly as practicable after $0.001 par value of the date on which Parent or Merger Sub Company (as the case may be) first accepts shares for payment pursuant to the Offer (individually a "Share" and collectively, the "Acceptance DateShares"), all shares of Company Common Stock ) together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that Parent and Merger Sub are permitted all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for under applicable lawShares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the other conditions set forth in Article 7. Acquisition expressly reserves the right to waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that Parent, GP and Acquisition agree that no change may be made without the written consent of the Company which decreases the Per Share Amount, 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 reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), 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 7 imposes conditions to the Offer in addition to those set forth in Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by 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. 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.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 9.1, as promptly as reasonably practicable possible but in no event later than ten five (5) business days after the date of the public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub GP shall cause Acquisition to commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"). The obligations of Parent , the Offer; and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant cause Acquisition to the Offer are subject use its best efforts to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of consummate the Offer, except thatincluding, without the written consent of the Companylimitation, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined engaging an information agent in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stockconnection therewith. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Acquisition shall accept for payment issued and purchaseoutstanding shares of common stock, as promptly as practicable after $0.001 par value of the date on which Parent or Merger Sub Company (as the case may be) first accepts shares for payment pursuant to the Offer (individually a "Share" and collectively, the "Acceptance DateShares"), all shares of Company Common Stock ) together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that Parent and Merger Sub are permitted all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for under applicable lawShares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the other conditions set forth in Article 7. Acquisition expressly reserves the right to waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that Parent, GP and Acquisition agree that no change may be made without the written consent of the Company which decreases the Per Share Amount, 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 reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), 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 Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by 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. 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.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable practicable, but in no event later than ten five business days after the date of the public announcement execution and delivery of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"). The obligations obligation of Merger Sub to, and of Parent and to cause Merger Sub to to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. A (any of which may be waived by Merger Sub in --------- its sole discretion, provided that, without the consent of the Company, Merger Sub may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to --------- the other conditions in this Agreement. The initial expiration date of the Offer shall be the 25th 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not not, except as provided in the next sentence: (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the Offer Price price per share of Company Common Stock to be paid pursuant to the Offer, ; (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner materially adverse to the holders of Company Common --------- Stock, ; (iv) except as provided below in this Section 1.01(a), extend the Offer, ; (v) change the form of consideration payable in the Offer Offer; or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretion, (Aw) from time to time extend the Offer ifOffer, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of the Offer shall Company Common Stock set forth herein or in Exhibit A are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived waived; (x) extend the Offer for a period of not more than 15 business days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the extent permitted by this AgreementOffer; (By) extend the Offer for any period required by applicable law, including any rule, regulation, interpretation or position of the SEC applicable to the Offer; or and (Cz) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) any reason for a period of three to twenty not more than 10 business days in order beyond the latest expiration date that would otherwise be permitted under this Section 1.01(a). It is agreed that the conditions to acquire at least 90% the Offer are for the benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the outstanding shares of circumstances giving rise to any such condition (including any action or inaction by Parent or Merger Sub not inconsistent with the Company Common Stockterms hereof). On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall accept for payment and purchase, as promptly as practicable after the date on which Parent or cause Merger Sub (as the case may be) first accepts shares to, pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept and pay for under applicable lawpurchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sind Acquisition Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 8 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit ANNEX A hereto shall have occurred or and be existingcontinuing, Parent shall cause Purchaser to, as promptly as reasonably practicable but practicable, and, in no event later than any event, within ten business days after (10) Business Days of the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2(a) under the Securities and Exchange Commission Act of 1934, as amended (the "SECEXCHANGE ACT"). The obligations of Parent ) the Offer to purchase any and Merger Sub to accept for paymentall outstanding Shares, and pay for, any shares of Company Common Stock tendered pursuant at a price per Share equal to the Offer are Price, net to the seller in cash, without interest, subject to reduction for any applicable withholding taxes and, if such payment is to be made other than to the registered holder, any applicable stock transfer or other similar taxes payable by such holder. The Offer will be made pursuant to an offer to purchase and related letter of transmittal containing the terms and conditions set forth in Exhibit A. this Agreement and ANNEX A hereto. The initial expiration date of the Offer shall be the 25th business day following twentieth Business Day from and after the commencement date the Offer is commenced as determined in accordance with Rule 14d-2(a) under the Exchange Act (the "INITIAL EXPIRATION DATE"). The obligation of Purchaser to accept for payment, purchase and pay for any Shares validly tendered pursuant to the Offer and not withdrawn shall be subject only to the satisfaction of (i) the condition that at least a majority of the shares of Company Common Stock outstanding on a fully-diluted basis assuming the exercise of all options, warrants, rights and convertible securities outstanding on the date the Offer expires (taking into account any shares of Company Common Stock owned by Parent or Purchaser or any affiliate of Parent or Purchaser on the date such Shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the expiration of the Offer (the initial "Expiration Date," MINIMUM CONDITION") and any expiration time and date established pursuant to an authorized extension of (ii) the Offer as so extendedother conditions set forth in ANNEX A hereto; provided, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub however, that Purchaser expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth (other than the Minimum Condition) and to make any change in this Agreement, promptly after the Expiration Date, either Parent terms or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to conditions of the Offer (other than the "Acceptance Date"Minimum Condition) in its sole discretion, subject to Section 1.01(b), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten six business days after the date of the public announcement of this Agreement, Parent and Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer iffor one or more periods of time (which, at without the scheduled Expiration Datewritten consent of the Company, any of shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer shall set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; Offer or (C) extend the Offer on one or more occasions for a "subsequent offering period" (as provided by Rule 14d-11 under an aggregate period of not more than ten business days if the Exchange Act) Minimum Tender Condition has been satisfied but fewer than 90% of the Company Common Shares have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of three to twenty business days in order to acquire at least 90% time (which, without the written consent of the outstanding Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 7.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of the Company Common StockStock in the Offer. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after expiration of the Expiration DateOffer, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are is permitted to accept and pay for under applicable law.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto nothing shall have occurred or be existing, as promptly as reasonably practicable but that would result in no event later than ten business days after the date a failure to satisfy any of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. Annex I hereto, Merger Subsidiary shall, as promptly as practicable following the date hereof and in any event prior to September 12, 2001, commence (within the meaning of Rule 14d-2 of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time, the "Offer") to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Shares") and the associated rights to purchase Shares (the "Rights") issued pursuant to the Rights Agreement between the Company and American Stock Transfer & Trust Company, as Rights Agent, dated as of February 1, 2001 (the "Rights Agreement") at a price of not less than $10.00 per Share and associated Right, net to the seller in cash. Subject to the satisfaction of the conditions to the Offer set forth in the immediately following sentence, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not properly withdrawn as soon as practicable after the expiration of the Offer. The obligation of Merger Subsidiary to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (x) 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 which, together with any Shares then owned by Parent or Merger Subsidiary, represents at least 80% of the Shares outstanding on the expiration date of the Offer (the "Minimum Condition"), and (y) the other conditions set forth in Annex I hereto (collectively, together with the Minimum Condition, the "Offer Conditions"). The Company shall advise the Parent in writing of the number of shares outstanding at the close of business on the expiration date. Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition from time to time, to increase the price per Share (and associated Right) payable in the Offer, to extend the Offer 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, Merger Subsidiary will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) except as required by law, impose conditions to the Offer in addition to the Offer Conditions, (iv) except as required by law, change the conditions to the Offer in any material respect adverse to the Company, (v) except as required by law, amend any other term of the Offer in a manner adverse to the holders of the Shares or (vi) change the form of consideration to be paid pursuant to the Offer. The initial expiration date of the Offer shall be the 25th 20 business day days following the commencement of the Offer. Merger Subsidiary agrees that (i) it shall not terminate or withdraw the Offer (or extend the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve unless at the right to waive any condition to the Offer or modify the terms expiration date of the Offer, except thatthe Offer Conditions shall not have been satisfied or earlier waived and (ii) if the Offer Conditions are not satisfied on any scheduled or extended expiration date of the Offer, without then if all such conditions are reasonably capable of being satisfied prior to November 30, 2001 (the written consent of "Termination Date"), Merger Subsidiary shall, unless otherwise agreed by the Company, extend the Offer from time to time (each such individual extension not to exceed ten business days from the previously scheduled expiration date) until such conditions are satisfied or waived; provided, however, that Merger Sub Subsidiary shall not (i) reduce the number of shares of Company Common Stock subject be required to the Offer, (ii) reduce extend the Offer Price to be paid pursuant to beyond the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockTermination Date. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Subsidiary may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer, if at any scheduled or extended expiration date of the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer Conditions shall not have been be satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, and (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the OfferOffer or any period required by applicable law; or (C) provided, however, the Offer may not be extended beyond the Termination Date without the consent of the Company; provided, further, however, that Merger Subsidiary may elect to extend the Offer to provide, in compliance with Rule 14d-11 under the Exchange Act, for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three not to twenty exceed 20 business days in order to acquire at least 90% following the expiration of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingVIII, as promptly as reasonably practicable but (and in no any event later than ten business days on or before May 27, 2015) after the date of the public announcement of this Agreementhereof, Parent and Merger Acquisition Sub shall commence the Offer (and Parent shall cause Acquisition Sub to) commence, within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Securities Offer, and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger Acquisition Sub to accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer Offer, shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not subject only to: (i) reduce there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Company Common Stock subject to (if any) then owned by Parent or its subsidiaries, represents a majority of the Offershares of Common Stock then outstanding (determined on a fully diluted basis as described below) (collectively, the “Minimum Condition”); (ii) reduce this Agreement not having been terminated in accordance with its terms (the Offer Price to be paid pursuant to the Offer, “Termination Condition”); and (iii) change the satisfaction, or waive waiver by Parent or Acquisition Sub, of the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions and requirements set forth in Exhibit A Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or modify any condition set forth in Exhibit A in any manner adverse obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the holders extent so exercisable, convertible or exchangeable prior to consummation of Company Common Stockthe Merger or exercisable, (iv) except convertible or exchangeable as provided below in this Section 1.01(a), extend a result of the Offer, (v) change the form consummation of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawMerger.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.1 hereof, as promptly as reasonably practicable practical after the date hereof (but in no event later than ten business days after the date of tenth (10/th/) Business Day following the public announcement of this Agreementthe execution hereof), Parent the Company and Merger Sub Acquisition Company shall commence the Offer within the meaning to purchase all of the applicable rules issued and regulations outstanding Shares (together with all associated shareholder rights) at the Offer Price per Share. The initial expiration date for the Offer shall be the twenty-first (21st) Business Day from and after the date the Offer is commenced, including the date of commencement as the first (1/st/) Business Day in accordance with Rule 13e-4 of the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act") (such ------------ initial expiration date as it may be extended in accordance with the terms of this Agreement, the "Expiration Date"). The obligations of Parent and Merger Sub the Company and/or --------------- Acquisition Company to accept for payment, payment and to pay for, any shares for Shares validly tendered on or prior to the Expiration Date and not withdrawn prior to the Expiration Date (the "Tendered Shares") shall be subject only to (i) there being validly --------------- tendered and not withdrawn prior to the expiration of the Offer at least fifty percent (50%) of the outstanding Shares of the Company (including for these purposes Shares issuable upon the exercise of Company Common Stock tendered pursuant Options by Persons who have not entered into Option Exercise/Cancellation Agreements), after giving effect to the Offer are subject to Closing and the cancellation of any Tendered Shares acquired by the Company, plus one Share (the "Minimum Condition") and (ii) the other ----------------- conditions set forth in Exhibit A. Annex A hereto. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionAcquisition Company shall, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On on the terms and subject to the prior satisfaction or waiver of the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly soon as practicable after the date on which Parent or Expiration Date, all Tendered Shares. In the event that the number of Tendered Shares, plus the shares issuable upon exercise of the Acquisition Company Option, without duplication, would permit the Merger Sub (as the case may be) first accepts shares for payment to be effected pursuant to Section 253 of the Offer DGCL (the "Acceptance DateShort Form Condition"), all shares Tendered Shares shall be purchased by -------------------- Acquisition Company. In the event the Short Form Condition is not satisfied, Tendered Shares having an aggregate purchase price of $90 million (or such greater amount, not to exceed $95.5 million in the aggregate, as may be required for Acquisition Company to own a majority of the outstanding Shares (including for these purposes Shares issuable upon the exercise of Company Common Stock validly tendered and Options by Persons who have not withdrawn pursuant entered into Option Exercise/Cancellation Agreements) after giving effect to the Offer that Parent Closing and Merger Sub are permitted to accept and pay for under applicable lawthe cancellation of any Tendered Shares acquired by the Company, or such greater amount as Acquisition Company may determine in its sole discretion) (the "Capital Contribution") shall be acquired by Acquisition -------------------- Company upon the Offer Closing and, after such acquisition by Acquisition Company, the balance of the Tendered Shares shall be acquired by the Company upon the Offer Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Carey International Inc)
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable (but in no event later than ten business days after the date of the public announcement of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "“SEC"”)) the Offer at the Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A. A (the “Offer Conditions”). The initial expiration date of the Offer shall be at the 25th time that is one minute following 11:59 p.m., New York City time, on the date that is 20 business day following the commencement days (determined using Rule 14d-1(g)(3) of the Offer Securities Exchange Act of 1934, as amended (together with the initial "Expiration Date," rules and any expiration time and regulations promulgated thereunder, the “Exchange Act”)) after the date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer Condition or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change waive, amend or waive modify the Minimum Tender Condition or the Termination Condition, (as defined in Exhibit A), iv) add to the Offer Conditions or impose any other conditions set forth in Exhibit A on the Offer or amend, modify or supplement any condition set forth in Exhibit A Offer Condition in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a1.01(b), extend the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer or Offer, (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may Stock or (but shall not be obligated toviii) except as otherwise provided in Section 1.01(b), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, provide any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under of the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Vitae Pharmaceuticals, Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 11.01 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable practicable, but in no event later than one business day, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"), an amended Offer to Purchase (the "Amended Offer to Purchase") and, if necessary, the related letter of transmittal and any related summary advertisement (the Form TO/A, the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "Offer Documents") to reflect, among other things, an increase in the per share price to be paid in the Offer to $27.00 and, if necessary, an extension of the currently scheduled expiration date to allow the Offer to remain open for ten business days after from the date of the public announcement such increase. The obligation of this Agreement, Parent and Merger Sub shall commence Co. to consummate the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, payment and to pay for, any for shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be subject only to (i) the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, condition that there shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify validly tendered in accordance with the terms of the Offer, except prior to the expiration date of the Offer and not withdrawn, a number of shares that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., represents 50.1% of the shares of Company Common Stock outstanding (the "Minimum Condition") and (ii) the other conditions set forth in Annex I hereto. Merger Co. expressly reserves the right to waive any such condition (other than the Minimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company Common Stock Amount. Notwithstanding the foregoing, Merger Sub shall not no change may be made which (i) reduce decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) increases the Maximum Amount or the Minimum Condition, (iv) reduces the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price sought to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined purchased in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change imposes conditions to the form Offer in addition to those set forth in Annex I hereto, (vi) except as specifically provided for in this Section 2.01(a), extends the expiration date of consideration payable in the Offer or (vivii) otherwise amend alters or amends any term of the Offer in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing; provided, Merger Sub may (but shall not be obligated to)however, without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend that the Offer if, at the scheduled Expiration Date, may be extended for any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived period to the extent permitted required by this Agreement; (B) extend the Offer for any period required law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or (C) extend . Parent and Merger Co. shall comply with the Offer for a "subsequent offering period" (as provided by Rule 14d-11 obligations respecting prompt payment and announcement under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , and, without limiting the generality of the outstanding shares of the Company Common Stock. On foregoing, subject to the terms and conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer that are set forth in have not been satisfied or waived as permitted pursuant to this Agreement, promptly after each such extension not to exceed (unless otherwise consented to in writing by the Expiration Date, either Parent Company) the lesser of 10 additional business days or such fewer number of days that Merger Sub shall accept for payment and purchase, as promptly as practicable after Co. reasonably believes are necessary to cause the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant conditions to the Offer (the "Acceptance Date"to be satisfied. Except as provided in Section 2.01(d) or 2.01(e), all Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, together with the shares of Company Common Stock then owned by Parent and Merger Sub are permitted to accept and pay for under applicable lawCo., will represent 50.1% of the shares of Company Common Stock outstanding.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and that none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but in no event later than within ten business days Business Days after the date of hereof, Merger Sub shall, and Parent shall cause Merger Sub (and the public announcement of this Agreement, Company shall cooperate with Parent and Merger Sub shall Sub) to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $8.60 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and regulations shall, upon commencement of the Offer but after affording the Company reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “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 reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligations Subject to the terms and conditions of Parent this Agreement and to the satisfaction or waiver of the conditions set forth in Annex A hereto (the “Tender Offer Conditions”), Merger Sub to shall, upon the expiration of the Offer, accept for payment, and pay forfor (after giving effect to any required withholding Tax), any shares of Company Common Stock all Shares validly tendered pursuant to the Offer are and not withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered shall be subject solely to the satisfaction of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No Shares held by the conditions set forth in Exhibit A. The initial expiration date of the Offer Company or its Subsidiaries shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid tendered pursuant to the Offer. For the avoidance of doubt, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable parties hereto agree that Restricted Shares may be tendered in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not and be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted acquired by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Odyssey Healthcare Inc)
The Offer. (a) The Merger Agreement provides that Purchaser will commence the Offer as promptly as practicable, and in any event on or before June 26, 2015. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Condition and the other conditions that are described in Section 15 — “Conditions to the Offer.” Subject to the satisfaction of the Minimum Condition and the other conditions that are described in Section 15 — “Conditions to the Offer,” the Merger Agreement provides that Purchaser will, and Parent will cause Purchaser to, accept for payment and pay for all Shares validly tendered and not properly withdrawn in the Offer on or promptly after the Expiration Date, as may be extended pursuant to the terms of the Merger Agreement. Acceptance of payment for Shares pursuant to and subject to the conditions of this Agreement and provided that this Agreement the Offer, which shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccur on July 27, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence 2015 unless we extend the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date terms of the Merger Agreement, is referred to herein as the “Offer shall be Closing,” and the 25th business day following the commencement of date on which the Offer (the initial "Expiration Date," and any expiration time and date established pursuant Closing occurs is referred to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration the “Offer Closing Date"). .” Parent and Merger Sub Purchaser expressly reserve the right to waive any condition to increase the Offer or modify Price, to make other changes in the terms and conditions of the Offer and to waive conditions to the Offer, except that, without the that Dealertrack’s prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce approval is required for Parent and Purchaser to: • decrease the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) Price; • change the form of consideration payable in the Offer; • change the number of Shares to be purchased in the Offer; • amend or waive the Minimum Condition, the Termination Condition, the Antitrust Law Condition or the Governmental Authority Condition; • add any condition to the Offer or (vi) otherwise any term that is adverse to the holders of Shares; • extend the Expiration Date except as required or permitted by the Merger Agreement; • provide for a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act; or • modify, supplement or amend any other term or condition of the Offer in any a manner adverse to the holders of Company Common StockShares. Notwithstanding The Merger Agreement contains provisions to govern the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and circumstances in its sole and absolute discretion, (A) from time which Purchaser is required or permitted to time extend the Offer ifand Parent is required to cause Purchaser to extend the Offer. Specifically, at the scheduled Expiration Date, Merger Agreement provides that: • If any of the conditions of the Offer shall Condition has not have been satisfied or waived until such time as such conditions are satisfied or waived or, to the extent permitted waivable by this Parent or Purchaser pursuant to the Merger Agreement; , waived by Parent or Purchaser, Purchaser shall (Band Parent shall cause Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position successive periods of the SEC applicable up to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty 5 business days each (or up to 20 business days if Parent so desires and Dealertrack consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to acquire at least 90% permit the satisfaction of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawConditions.
Appears in 1 contract
Samples: Cox Automotive, Inc.
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 8 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existingcontinuing, Parent shall cause Purchaser to, as promptly as reasonably practicable but practicable, and, in no event later than any event, within ten business days after (10) Business Days of the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2(a) under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"). The obligations of Parent ) the Offer to purchase any and Merger Sub to accept for paymentall outstanding Shares, and pay for, any shares of Company Common Stock tendered pursuant at a price per Share equal to the Offer are Price, net to the seller in cash, without interest, subject to reduction for any applicable withholding taxes and, if such payment is to be made other than to the registered holder, any applicable stock transfer or other similar taxes payable by such holder. The Offer will be made pursuant to an offer to purchase and related letter of transmittal containing the terms and conditions set forth in Exhibit A. this Agreement and Annex A hereto. The initial expiration date of the Offer shall be the 25th business day following twentieth Business Day from and after the commencement date the Offer is commenced as determined in accordance with Rule 14d-2(a) under the Exchange Act (the "Initial Expiration Date"). The obligation of Purchaser to accept for payment, purchase and pay for any Shares validly tendered pursuant to the Offer and not withdrawn shall be subject only to the satisfaction of (i) the condition that at least a majority of the shares of Company Common Stock outstanding on a fully-diluted basis assuming the exercise of all options, warrants, rights and convertible securities outstanding on the date the Offer expires (taking into account any shares of Company Common Stock owned by Parent or Purchaser or any affiliate of Parent or Purchaser on the date such Shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the expiration of the Offer (the initial "Expiration Date," Minimum Condition") and any expiration time and date established pursuant to an authorized extension of (ii) the Offer as so extendedother conditions set forth in Annex A hereto; provided, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub however, that Purchaser expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth (other than the Minimum Condition) and to make any change in this Agreement, promptly after the Expiration Date, either Parent terms or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to conditions of the Offer (other than the "Acceptance Date"Minimum Condition) in its sole discretion, subject to Section 1.01(b), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A Annex I hereto shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable after the date hereof, but in no event later than ten business days after the date of the public announcement of this AgreementMarch 2, Parent and 2007, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer to purchase any and regulations all of the Securities and Exchange Commission (outstanding shares of Company Common Stock at the "SEC")Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, payment and pay for, any for shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer Annex I hereto (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the “Offer as so extended, shall also be defined herein as an "Expiration Date"Conditions”). Parent and Merger Sub expressly reserve reserves the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of the Offer, except that, that without the prior written consent of the Company, Merger Sub shall not (iA) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition condition set forth in paragraph 1(a) of Annex I, (as defined in Exhibit A), D) add to the conditions set forth in Exhibit A or on Annex I, (E) modify any condition the conditions set forth in Exhibit A Annex I in any a manner adverse to the holders of shares of Company Common Stock, (ivF) extend the Expiration Date (as defined in Annex I) except as provided below in required or permitted by this Section 1.01(a1.1(a), extend the Offer, or (vG) make any other change the form of consideration payable in the Offer terms or (vi) otherwise amend conditions of the Offer in any manner which is adverse to the holders of shares of Company Common Stock. The initial Expiration Date shall be the twentieth business day following (and including the day of) the commencement of the Offer. If any of the Offer Conditions is not satisfied or waived on any scheduled Expiration Date, if such Offer Condition(s) could reasonably be expected to be satisfied, Merger Sub shall extend the Offer from time to time until such Offer Condition(s) are satisfied or waived. Any individual extension of the Offer pursuant to the preceding sentence shall not exceed 10 business days and in no event shall the Offer extend beyond the Walk-Away Date without the mutual written consent of the Company and Parent. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionCompany, (A) from time Merger Sub shall have the right to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law. Following expiration of the Offer; or (C) extend the Offer for , Merger Sub may, in its sole discretion, provide a "subsequent offering period" period (as provided by the “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act) for a period of three . Subject to twenty business days in order the foregoing, and to acquire at least 90% the satisfaction, or waiver by Merger Sub, of the outstanding shares Offer Conditions as of the Company Common Stock. On time of any scheduled expiration of the terms and subject to the conditions to the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause it to, accept for payment payment, as promptly as permitted under applicable securities laws, and purchasepay for, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares of Company Common Stock for payment pursuant to the Offer (the "“Acceptance Date"”), all shares of Company Common Stock (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period. Parent shall provide or cause to be provided to Merger Sub on a timely basis funds necessary to purchase all shares of Company Common Stock that Parent Merger Sub becomes obligated to purchase pursuant to the Offer and Merger Sub are permitted to accept and pay shall maintain such funds exclusively for under applicable lawsuch purpose.
Appears in 1 contract
Samples: Agreement of Merger (Shire PLC)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingEXHIBIT A, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay deliver any payment for, any shares of Company Common Stock tendered pursuant to the Offer are subject to no conditions other than the conditions set forth in Exhibit EXHIBIT A. The initial expiration date of the Offer shall be the 25th 20th business day following the commencement of the Offer (determined using Rule 14d-1(g)(3) under the initial Securities Exchange Act of 1934, as amended (the "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an EXCHANGE ACT"Expiration Date")). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the CompanyCompany (expressed in a resolution adopted by both the Special Committee and the Company Board), Parent and Merger Sub shall not (i) reduce the number amount of consideration per share of Company Common Stock or change the form of consideration to be paid pursuant to the Offer or reduce the percentage of shares of Company Common Stock subject offered to be acquired in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit EXHIBIT A or modify any condition set forth in Exhibit EXHIBIT A in any manner adverse to the holders of Company Common Stock, Stock (ivother than the Affiliate Shareholders) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (viiii) otherwise amend the Offer in any manner adverse to the holders of Company Common StockStock (other than the Affiliate Shareholders). The Company agrees that no Company Common Stock held by the Company (including shares of Company Common Stock held in treasury by the Company) will be tendered pursuant to the Offer. Notwithstanding the foregoing, Parent and Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer ifOffer, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions to Parent's and Merger Sub's obligation to purchase shares of the Offer shall Company Common Stock are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; irrevocably waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or Offer and (Ciii) extend the Offer for any reason for a period of not more than 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence but in no event ending later than the date set forth in Section 8.01(b)(i) and only so long as Parent and Merger Sub shall have waived each of the conditions set forth in EXHIBIT A. In the event that Parent and Merger Sub are unable to consummate the Offer on the initial scheduled expiration date due to the failure of the conditions set forth in EXHIBIT A to be satisfied or waived, except to the extent that such conditions are incapable of being satisfied, Parent and Merger Sub shall not terminate the Offer and shall extend the Offer (for no more than 10 business days without the consent of the Special Committee) and set a subsequent scheduled expiration date, and shall continue to so extend the Offer under such circumstances and set subsequent scheduled expiration dates until the earlier of (x) the date that such conditions are satisfied or waived and (y) the date set forth in Section 8.01(b)(i). In addition, notwithstanding the foregoing, Parent and Merger Sub shall provide a "subsequent offering period" (as provided by ", in accordance with Rule 14d-11 under the Exchange Act, of a number of days ending on the earliest to occur of (i) for a period of three to twenty 20 business days following commencement of such subsequent offering period, (ii) the business day prior to the Closing Date (as defined in order Section 1.04) and (iii) December 31, 2000, if extending the subsequent offering period beyond December 31, 2000 would reasonably be expected to acquire at least 90% of the outstanding shares of the Company Common Stockadversely affect Parent. On the terms and subject to the conditions to of the Offer that are and this Agreement, Parent and Merger Sub shall (i) if the conditions set forth in this Agreement, promptly after the Expiration Date, either EXHIBIT A have been satisfied or waived by Parent or and Merger Sub shall and the Offer has expired, accept for payment all shares of Company Common Stock validly tendered and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment not withdrawn pursuant to the Offer Offer, (the "Acceptance Date"), ii) deliver payment for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub become obligated to purchase upon expiration of the Offer or initial period of the Offer, as applicable, as soon as practicable after such expiration and (iii) deliver payment for any shares of Company Common Stock validly tendered pursuant to the Offer during the subsequent offer period that Parent and Merger Sub are permitted obligated to accept purchase promptly upon such tender. The parties agree and acknowledge that neither the acceptance for payment nor payment for any shares of Company Common Stock pursuant to the Offer will affect the Company's obligation to pay any dividends on such shares with a record date prior to such acceptance for under applicable lawpayment or payment that may have been declared by the Company in accordance with the terms of this Agreement or prior to the date of this Agreement and which remain unpaid at the time of such acceptance for payment or payment. Parent will not issue certificates or scrip representing fractional shares pursuant to the Offer. Parent will pay cash in lieu of fractional shares in accordance with Section 2.02(d).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Axa)
The Offer. (a) Subject to the conditions of this The Merger Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following contemplates the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension purchase all of the Offer as so extendedissued and outstanding Class A Shares and all of the issued and outstanding Class B Shares for the Per Share Amount, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition net to the Offer or modify the terms seller in cash, without interest and prescribes conditions to consummation of the Offer, except . The Merger Agreement provides that, without the prior written consent of Beringer, Purchaser may not: - Decrease or change the Company, Merger Sub shall not (i) reduce form of the Per Share Amount; - Decrease the number of shares of Company Common Stock subject Shares sought to be purchased in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change ; - Amend or waive the Minimum Tender Condition (as defined in Exhibit A), add Condition; - Impose additional conditions to the conditions set forth in Exhibit A Offer; or modify - Amend any condition set forth in Exhibit A in any manner adverse to the holders other term of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding The "Minimum Condition" requires that there shall have been validly tendered and not withdrawn prior to the foregoingExpiration Date a number of Shares that, Merger Sub may together with any Shares that Purchaser has the right to acquire pursuant to the Tender Agreement (but shall excluding Shares subject to the Tender Agreement that have been validly tendered and not be obligated towithdrawn prior to the Expiration Date) and any Shares then owned by Xxxxxx'x or any of its subsidiaries, constitutes at least a majority of the total voting power of the outstanding securities of Beringer entitled to vote in the election of directors or in a merger (the "Voting Securities"), without calculated on a fully diluted basis on the consent date of purchase ("on a fully diluted basis" having the Company and in its sole and absolute discretionfollowing meaning: as of any date, (A) from time the number of Voting Securities outstanding, together with the number of Voting Securities Beringer is then required to time extend issue pursuant to obligations outstanding at that date under employee stock options, warrants, benefit plans or other rights to purchase or acquire Voting Securities, assuming the Offer ifabsence of any vesting requirements or conditions). If, at on the scheduled Expiration Date, any of the Date all conditions of to the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, Purchaser may (Band at Xxxxxxxx'x request will) extend the Offer Expiration Date from time to time for any period required by any rule, regulation, interpretation or position of the SEC applicable such additional periods not to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business exceed 30 calendar days in order to acquire at least permit such conditions to be satisfied; provided, however, that the Expiration Date may not be extended beyond January 31, 2001. Notwithstanding that all the conditions to the Offer have been satisfied, Xxxxxx'x may, in its sole discretion, extend the Expiration Date for up to 10 business days. In the event that the Minimum Condition has been satisfied and all other conditions to the Offer have been satisfied or waived but less than 100% of the Class A Shares and 90% of the outstanding shares Class B Shares, calculated on a fully diluted basis, have been validly tendered and not withdrawn on the Expiration Date, Purchaser will accept and purchase all of the Company Common StockShares tendered in the initial offer period and may notify stockholders of Purchaser's intent to provide a Subsequent Offer Period which shall not exceed 10 business days. On Purchaser will, on the terms and subject to the prior satisfaction or waiver of the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as soon as permissible after the Expiration Date of the Offer. Xxxxxx'x will cause Purchaser to have sufficient funds make all payments required to be made pursuant to the Offer and the Merger and Xxxxxx'x shall cause Purchaser to comply with all of its obligations under the Merger Agreement. The Company represented and warranted to Xxxxxx'x in the Merger Agreement that: - The Beringer Board, at a meeting duly called and held, unanimously (with one Beringer Board member absent): - Approved and adopted the Merger Agreement and approved the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger (such adoption and approval being sufficient to render Section 203 of the Delaware General Corporation Law (the "DGCL") inapplicable to the Merger Agreement and the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger, assuming that Parent Xxxxxx'x and Purchaser are not "interested stockholders," as such term is defined in Section 203 of the DGCL, immediately prior to the execution of the Merger Sub Agreement and the Tender Agreement by Xxxxxx'x and Purchaser); - Recommended that the stockholders of Beringer accept the Offer, tender their Shares pursuant to the Offer and adopt the Merger Agreement and approve the transactions contemplated thereby, including the Merger; and - Determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are permitted fair to accept and pay in the best interests of the stockholders of Beringer, and - Xxxxxxx, Xxxxx & Co., Xxxxxxxx'x financial advisor, rendered its opinion to the Beringer Board to the effect that the consideration to be received by the holders of Shares pursuant to the Offer and the Merger is fair to such holders from a financial point of view. The Merger Agreement provides that, if requested by Xxxxxx'x, following the purchase by Purchaser of any Shares pursuant to the Offer and thereafter the purchase of Shares pursuant to the Tender Agreement, and from time to time thereafter as Shares are acquired by Purchaser, Xxxxxx'x is entitled to designate such number of directors, rounded up to the next whole number, on the Beringer Board as is equal to the product of the total number of directors on the Beringer Board (determined after giving effect to the directors so appointed or elected pursuant to such provision and including current directors serving as officers of Beringer) multiplied by the percentage that the aggregate number of Shares beneficially owned by Xxxxxx'x or its affiliates (including such Shares as are accepted for payment pursuant to the Offer, but excluding Shares held by Beringer) bears to the total number of Shares then outstanding. At such times, if requested by Xxxxxx'x, Beringer will also cause each committee of the Beringer Board to include persons designated by Xxxxxx'x constituting the same percentage of each such committee as designees of Xxxxxx'x are of the Beringer Board. The Company will, upon request by Xxxxxx'x, promptly increase the size of the Beringer Board or use its best efforts to secure the resignations of such number of directors as is necessary to enable designees of Xxxxxx'x to be elected to the Beringer Board and shall cause designees of Xxxxxx'x to be elected to the Beringer Board. In the event that designees of Xxxxxx'x are appointed or elected to the Beringer Board, until the Effective Time, the Beringer Board shall include at least three directors who were directors on the date of the Merger Agreement and who are neither officers of Beringer nor designees, stockholders, affiliates or associates of Xxxxxx'x (the "Independent Directors"). If no Independent Directors remain, the other directors shall designate three persons to fill the vacancies, none of whom shall be either an officer of Beringer or a designee, stockholder, affiliate or associate of Xxxxxx'x, and such persons shall be deemed to be Independent Directors for purposes of the Merger Agreement. Prior to the Effective Time, the affirmative vote of a majority of the Independent Directors is required to: - amend or terminate the Merger Agreement on behalf of Beringer, - exercise or waive any of Xxxxxxxx'x rights or remedies under applicable lawthe Merger Agreement, - extend the time for performance of Xxxxxx'x obligations under the Merger Agreement, or - take any other action by Beringer in connection with the Merger Agreement required to be taken by the Beringer Board. Pursuant to the Merger Agreement, until the Effective Time, the affirmative vote of a majority of the Independent Directors is sufficient to cause Beringer to enforce any of its rights and remedies under the Merger Agreement.
Appears in 1 contract
Samples: Bordeaux Acquisition Corp
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have having been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing10 hereof, as promptly as reasonably practicable but in no any event later than within ten business days after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall commence the Offer commence, within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, an offer to purchase (the "SECOffer") all, and in any event not less than a majority on a fully diluted basis (assuming the exercise of all Options (as defined in Section 5.2(d)) that are then exercisable and any other rights to acquire shares of Common Stock on the date of purchase (a "Fully Diluted Basis"), of the outstanding shares of Common Stock at a price of $3.00 per share of Common Stock, net to the seller in cash, without interest (such price or any higher price paid pursuant to the Offer, the "Offer Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligations obligation of Parent Purchaser and Merger Sub to commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date A hereto and to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, the Offer shall be expire 20 business days after the 25th business day following the commencement date of its commencement, unless this Agreement is terminated in accordance with Article 10, in which case the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer whether or modify not previously extended in accordance with the terms hereof) shall expire on such date of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawtermination.
Appears in 1 contract
The Offer. (a) Subject to The Merger Agreement provides for the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension making of the Offer as so extendedprovided in this Offer to Purchase. The Company Board of Directors. The Merger Agreement provides that Parent shall be entitled to designate a number of directors, rounded up to the next whole number, of the Company Board of Directors equal to the product of the total number of directors on the Company Board of Directors (giving effect to the directors designated by Parent) multiplied by a fraction of which the numerator shall also be defined herein as an "Expiration Date"). the number of Shares which Parent and Merger Sub expressly reserve its subsidiaries (including Purchaser) beneficially own at that time, and the right to waive any condition to denominator shall be the Offer or modify the terms total number of the Offer, except that, without the written consent of the Company, Merger Sub Shares then outstanding. The Directors so designated by Parent shall not take office immediately after (i) reduce the purchase of and payment for any Shares by Parent or any of its subsidiaries as a result of which Parent and its subsidiaries owns beneficially at least a majority of then outstanding Shares and (ii) compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, whichever shall occur later. In furtherance thereof, the Company shall, upon request of Parent, use its best efforts promptly either to increase the size of the Company Board of Directors or to secure the resignations of such number of shares its incumbent directors, or both, as is necessary to enable such designees of Company Common Stock subject Parent to be so elected or appointed to the OfferCompany Board of Directors, and the Company shall take all actions available to the Company to cause such designees of Parent to be so elected or appointed. At such time, the Company shall, if requested by Parent, also take all action necessary to cause persons designated by Parent to constitute the same percentage (rounded up to the next whole number) as is on the Company Board of Directors of (i) each committee of the Company Board of Directors, (ii) reduce each board of directors (or similar body) of each of the Offer Price to be paid pursuant to the Offer, Company's subsidiaries and (iii) change each committee (or waive similar body) of each such board. The Merger Agreement provides that the Minimum Tender Condition (as defined in Exhibit A)Company will promptly take, add at its expense, all actions required pursuant 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, (ivSection 14(f) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company Exchange Act and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days 14f-1 promulgated thereunder in order to acquire at least 90% of fulfill its obligations under the outstanding shares of prior paragraph, including mailing to shareholders the Company Common Stock. On the terms information required by such Section 14(f) and subject Rule 14f-1 as is necessary to the conditions enable Parent's designees to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent be elected or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant appointed to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.the
Appears in 1 contract
Samples: Fedders Corp /De
The Offer. (a) Belden shall promptly publicly announce its intention to cause the Acquiror to make an offer (the “Offer”), and the Acquiror shall commence the Offer, subject to Section 2.3(e), pursuant to which the Acquiror shall make, or cause a direct or indirect wholly-owned subsidiary of the Acquiror to make, the Offer for all of the Miranda Shares, including Miranda Shares issuable (and that, prior to the Expiry Time are actually issued or conditionally issued pursuant to Sections 4.12 and 4.14) upon the exercise of Options, by mailing the Offer to registered Miranda Shareholders not later than 11:59 p.m. (Eastern time) on the tenth Business Day following the date hereof (the “Latest Mailing Time”), subject to the timely receipt of all required information from Miranda and provided that if the mailing of the Offer is delayed by reason of: (a) any circumstance contemplated in Section 2.1(e)(x), then, provided that such injunction, order or other action is being contested or appealed by Belden or the Acquiror, the Latest Mailing Time shall be extended to 11:59 p.m. (Eastern time) on the fifth Business Day following the date on which such injunction, order or other action ceases to be in effect; (b) the Acquiror not having obtained any regulatory waiver, consent or approval which is necessary to permit the Acquiror to mail the Offer, then, provided that such regulatory waiver, consent or approval is being actively sought, the Latest Mailing Time shall be extended to 11:59 p.m. (Eastern time) on the fifth Business Day following the date on which such waiver, consent or approval is obtained; (c) Miranda not having provided to the Acquiror the Miranda Circular in accordance with Section 2.1(e)(vi) as well as any information pertaining to Miranda that is necessary for the completion of the Acquiror Circular by the Acquiror, or not having provided the lists and other information and assistance referred to in Section 2.4, or not having provided the Acquiror with such other assistance in the preparation of the Acquiror Circular as may be reasonably requested by the Acquiror in order that the Acquiror Circular comply in all material respects with applicable Securities Laws, then the Latest Mailing Time shall be extended to 11:59 p.m. (Eastern time) on the fifth Business Day following the date on which Miranda supplies such necessary information or other assistance; (d) an Acquisition Proposal having been publicly announced, the Latest Mailing Time shall be extended to 11:59 p.m. (Eastern time) on the fifth Business Day following the date on which the Miranda Board has confirmed in writing to the Acquiror that such Acquisition Proposal is not a Superior Proposal and has publicly re-affirmed its recommendation in favour of the Offer; (e) an Acquisition Proposal having been privately submitted to Miranda, the Latest Mailing Time shall be extended to 11:59 p.m. (Eastern time) on the fifth Business Day following the date on which the Miranda Board has confirmed in writing to the Acquiror that such Acquisition Proposal is not a Superior Proposal; and (f) Miranda having provided a Superior Proposal Notice to Belden pursuant to Section 4.7(a)(iii) prior to the Latest Mailing Time, then the Latest Mailing Time will be extended to 11:59 p.m. (Eastern time) on the fifth Business Day following the earlier of (A) the date on which Miranda provides written notification to Belden that the Miranda Board has determined that the applicable Acquisition Proposal is not a Superior Proposal, and (B) the date on which Miranda and the Acquiror enter into an amended agreement pursuant to Section 4.7(b) which results in such Acquisition Proposal ceasing to be a Superior Proposal. The Acquiror may, at its election, commence the Offer by way of advertisement in a national Canadian newspaper and otherwise in compliance with Securities Laws. Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingforegoing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement execution and delivery of this Agreement, Parent the Acquiror shall complete the Acquiror Circular, in the English and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of French languages, together with any other documents required by the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth Laws in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of connection with the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as reasonably practicable after thereafter, the date on which Parent or Merger Sub (as Acquiror shall, unless otherwise agreed by the case may be) first accepts shares for payment pursuant to parties, cause the Acquiror Circular and other documentation required in connection with the Offer (to be sent to each of the "Acceptance Date"), all shares of Company Common Stock validly tendered Miranda Shareholders and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under filed as required by applicable lawLaws.
Appears in 1 contract
Samples: Support Agreement (Belden Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten six business days after the date of the public announcement of this Agreement, Parent and Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer iffor one or more periods of time (which, at without the scheduled Expiration Datewritten consent of the Company, any of shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer shall set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; Offer or (C) extend the Offer on one or more occasions for a "subsequent offering period" (as provided by Rule 14d-11 under an aggregate period of not more than ten business days if the Exchange Act) Minimum Tender Condition has been satisfied but fewer than 90% of the Company Common Shares have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of three to twenty business days in order to acquire at least 90% time (which, without the written consent of the outstanding Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, PROVIDED that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 7.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), following its acceptance for payment of shares of the Company Common StockStock in the Offer. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after expiration of the Expiration DateOffer, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are is permitted to accept and pay for under applicable law.
Appears in 1 contract
The Offer. (a) Subject only to any Laws or Orders preventing commencement of the conditions of this Agreement and Offer, provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII ARTICLE 8 hereof and none of that the events Company complies with its covenants set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingthis Agreement, then Acquisition Corp. shall, as promptly as reasonably practicable practicable, but in no event not later than ten business days the tenth (10th) Business Day after the date of the public announcement of this Agreementhereof (unless due to a Force Majeure Event), Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECEXCHANGE ACT")) an offer (the "OFFER") to purchase all of the Common Shares at a price of $8.85 per share in cash (such price, or such higher price per Common Share as may be paid in the Offer, the "OFFER Price"), subject to the condition that the holders of Common Shares have validly tendered and not withdrawn prior to the expiration of the Offer a number of Common Shares which, together with the Common Shares beneficially owned by Parent or Acquisition Corp., represents at least 51% of the Common Shares determined on a Fully-Diluted Basis (the "MINIMUM CONDITION") and subject to the other conditions set forth in Annex A hereto. The obligations Subject to the prior satisfaction of Parent the Minimum Condition and Merger Sub the prior satisfaction (or waiver in writing by Acquisition Corp.) of the other conditions of the Offer set forth in Annex A, Acquisition Corp. shall use reasonable best efforts to consummate the Offer in accordance with its terms and to accept for payment, payment and pay for, any shares for all of Company the Common Stock Shares that are tendered pursuant to the Offer are subject as soon as it is legally permitted to do so under applicable Law. The date on which all of the Common Shares validly tendered pursuant to the Offer and not withdrawn have been accepted for payment and paid for is referred to herein as the "OFFER PAYMENT DATE" The obligations of Acquisition Corp. to commence the Offer and to accept for payment and pay for the Common 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 Exhibit A. Annex A hereto. The initial expiration date of the Offer shall be made by means of an offer to purchase (the 25th business "OFFER TO PURCHASE") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall remain open until 5:00 p.m., New York City time, on the day immediately following the commencement twentieth Business Day of the Offer (as such term is defined in Rule 14d-1(g)(3) under the initial "Expiration Date," and any expiration Exchange Act), unless Acquisition Corp. shall have extended the time and date established for which the Offer is open pursuant to an authorized extension of the Offer this SECTION 1.01 or as so extended, shall also may be defined herein as an "Expiration Date")required by Law. Parent and Merger Sub Acquisition Corp. expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub neither Parent nor Acquisition Corp. shall not (i) reduce decrease the Offer Price, decrease the number of shares of Company Common Stock subject to Shares sought, increase or decrease the Offerrequired percentage of, (ii) reduce the Offer Price to be paid pursuant to the Offeror waive, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A)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, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of or reduce the consideration payable in the Offer or (vi) otherwise add to or amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall set forth in Annex A hereto in any manner which would be adverse to the holders of the Common Shares (other than with respect to insignificant changes or amendments); PROVIDED, HOWEVER, (i) if on the initially scheduled expiration date of the Offer (as it may be extended) any of the conditions to the Offer have not have been satisfied or waived until such waived, Acquisition Corp. may, from time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) time, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position (provided that no such extension pursuant to this sentence shall extend the Offer beyond the date of the SEC applicable termination of this Agreement pursuant to ARTICLE 8), (ii) if on or before the initially scheduled expiration date of the Offer (as it may be extended) any of the conditions to the Offer; Offer have not been satisfied or (C) waived, the Company shall have the option to require Acquisition Corp. to extend the Offer for a period of up to the number of Business Days equal to (X) ten minus (Y) the number of Business Days of any Force Majeure Period and MINUS (Z) the number of Business Days of any Commencement Delay Election, if the Company is not in material breach of its covenants under this Agreement, the Company provides notice to Parent and Acquisition Corp. of its election to extend the expiration date of the Offer pursuant to clause (ii) of this SECTION 1.01 and the Company pays certain Expenses of Parent and Acquisition Corp. pursuant to SECTION 9.01 (the "COMPANY EXTENSION ELECTION") and (iii) Acquisition Corp. may, in its sole discretion, provide a subsequent offering period" (as provided by period in accordance with Rule 14d-11 under the Exchange Act) for a period of three . In addition, the Offer Price may be increased, and, in connection therewith, the Offer may be extended, to twenty business days the extent required by applicable federal securities laws, in order to acquire at least 90% each case without the consent of the outstanding shares Company. Notwithstanding the foregoing, if, as of the Company Common Stock. On the terms and subject immediately prior to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the expiration date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to of the Offer (the "Acceptance Date"as it may be extended), all shares of Company the Common Stock validly Shares tendered and not withdrawn pursuant to the Offer constitute less than 90% of the Common Shares determined on a Fully-Diluted Basis, Acquisition Corp. may, from time to time in its sole discretion, extend the Offer for a period not to exceed twenty Business Days in the aggregate, notwithstanding that Parent and Merger Sub all conditions to the Offer are permitted to accept and pay for under applicable lawsatisfied as of such expiration date of the Offer.
Appears in 1 contract
Samples: Acquisition Agreement And (Prentice Capital Management, LP)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.01 hereof, as promptly as reasonably practicable but after the Agreement Date (and in any event no event later than ten business days fifteen (15) Business Days after the date of the initial public announcement of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)), the Offer to purchase all of the Securities and Exchange Commission (outstanding Shares at the "SEC")Offer Price. The obligations obligation of Parent and Merger Sub to accept for payment, payment and pay for, for any shares of Company Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be subject only to (i) the 25th business day following the commencement of the Offer condition that there shall be validly tendered (the initial "Expiration Date," and not including any expiration time and date established Shares tendered pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify guaranteed delivery procedures that were not actually delivered) in accordance with the terms of the Offer, except 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, without together with the written consent Shares then directly or indirectly owned by Parent, represents at least sixty-seven percent (67%) of all of the Company’s outstanding Shares immediately prior to the Share Acceptance Time (the “Minimum Condition”), and (ii) the conditions set forth in Annex II (which is incorporated by reference into this Agreement) and no other conditions (together with the Minimum Condition, the “Offer Conditions”). Merger Sub shall not (i) reduce Sub, or Parent on behalf of Merger Sub, expressly reserves the number right to waive, in its sole discretion, in whole or in part, any of shares the Offer Conditions and to make any change in the terms of Company Common Stock subject or conditions to the Offer; provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole and absolute discretion), (iiA) reduce the Offer Price Minimum Condition may not be waived or amended, (B) no change may be made that changes the form of consideration to be paid pursuant to the Offer, (iii) change decreases the Offer Price or waive the Minimum Tender Condition (as defined number of Shares sought in Exhibit A)the Offer, add imposes conditions to the conditions Offer in addition to those set forth in Exhibit A Annex II, or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer otherwise amends or (vi) otherwise amend modifies the Offer in any manner adverse to the holders of Company Common StockShares, and (C) the Offer may not be extended except as set forth in this Section 1.01. Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding anything in this Agreement to the foregoingcontrary, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub may (but shall not be obligated to)or Parent on its behalf) (i) may, in its sole discretion, without the consent of the Company Company, and in its sole and absolute discretionwithout limiting Parent’s or Merger Sub’s obligations under the following sentence, (A) from time to time extend the Offer ifon one or more occasions, at in consecutive increments of up to fifteen (15) Business Days each, for any period up to and including the Outside Date if on any then-scheduled Expiration Date, Date any of the conditions of the Offer shall Conditions has not have been satisfied or waived until such time as such conditions are satisfied or waived or, to the extent permitted permitted, waived in writing by this Agreement; Merger Sub (Bor Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived, and (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or its staff applicable to the Offer; or . Parent and Merger Sub agree that, except to the extent this Agreement is terminated in accordance with Section 8.01 and except otherwise agreed in writing by the Company prior to any then-scheduled Expiration Date, Merger Sub shall (Cand Parent shall cause Merger Sub to) extend the Offer for on one or more occasions, in consecutive increments of up to fifteen (15) Business Days each, up to and including the Outside Date, if on any then-scheduled Expiration Date any of the Offer Conditions have not been satisfied or, to the extent permitted, waived in writing by Merger Sub (or Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the Outside Date or after the Company delivers, or is required to deliver, to Parent a "notice in accordance with Section 5.02 with respect to a Takeover Proposal, except to the extent that at least one (1) day prior to the then-scheduled Expiration Date (i) the Takeover Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Takeover Proposal giving rise to such notice, (ii) the Company Board has reconfirmed the Board Recommendation (after receiving such Takeover Proposal), and (iii) the withdrawal or rejection of such Takeover Proposal or such reconfirmation of the Board Recommendation shall have been publicly announced by the Company. Following the expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period" period or one or more extensions thereof (as provided by a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , if, as of the outstanding shares commencement of such period, there shall not have been validly tendered (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company Common Stockin accordance with Section 253 of the Delaware General Corporation Law, as amended (the “DGCL”). On Subject to the foregoing, including the requirements of Rule 14d-11 under the Exchange Act, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable, (1) after the Expiration Date, either Parent or Merger Sub shall accept for payment all Shares validly tendered and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment not properly withdrawn pursuant to the Offer and/or (the "Acceptance Date"), 2) all Shares validly tendered in any Subsequent Offering Period. The Company agrees that no shares of Company Common Stock validly held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and not withdrawn withhold from the consideration otherwise payable pursuant to the Offer that Parent and to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Laws relating to Taxes. To the extent that amounts are permitted so withheld and paid over to accept the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and pay for under withholding were made by Merger Sub. Except to the extent this Agreement is terminated in accordance with Section 8.01, Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company (in its sole and absolute discretion). If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable lawLaw, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cti Group Holdings Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 11.01 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable practicable, but in no event later than three business days, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"), an amended Offer to Purchase (the "Amended Offer to Purchase") and, if necessary, the related letter of transmittal and any related summary advertisement (the Form TO/A, the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "Offer Documents") to reflect, among other things, an increase in the per share price to be paid in the Offer to $30.00 and, if necessary, an extension of the currently scheduled expiration date to allow the Offer to remain open for ten business days after from the date of the public announcement such increase. The obligation of this Agreement, Parent and Merger Sub shall commence Co. to consummate the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, payment and to pay for, any for shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be subject only to (i) the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, condition that there shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify validly tendered in accordance with the terms of the Offer, except prior to the expiration date of the Offer and not withdrawn, a number of shares that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., represents 50.1% of the shares of Company Common Stock outstanding (the "Minimum Condition") and (ii) the other conditions set forth in Annex I hereto. Merger Co. expressly reserves the right to waive any such condition (other than the Minimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company Common Stock Amount. Notwithstanding the foregoing, Merger Sub shall not no change may be made which (i) reduce decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) increases the Maximum Amount or the Minimum Condition, (iv) reduces the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price sought to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined purchased in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change imposes conditions to the form Offer in addition to those set forth in Annex I hereto, (vi) except as specifically provided for in this Section 2.01(a), extends the expiration date of consideration payable in the Offer or (vivii) otherwise amend alters or amends any term of the Offer in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing; provided, Merger Sub may (but shall not be obligated to)however, without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend that the Offer if, at the scheduled Expiration Date, may be extended for any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived period to the extent permitted required by this Agreement; (B) extend the Offer for any period required law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or (C) extend . Parent and Merger Co. shall comply with the Offer for a "subsequent offering period" (as provided by Rule 14d-11 obligations respecting prompt payment and announcement under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , and, without limiting the generality of the outstanding shares of the Company Common Stock. On foregoing, subject to the terms and conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer that are set forth in have not been satisfied or waived as permitted pursuant to this Agreement, promptly after each such extension not to exceed (unless otherwise consented to in writing by the Expiration Date, either Parent Company) the lesser of 10 additional business days or such fewer number of days that Merger Sub shall accept for payment and purchase, as promptly as practicable after Co. reasonably believes are necessary to cause the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant conditions to the Offer (the "Acceptance Date"to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), all Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, together with the shares of Company Common Stock then owned by Parent and Merger Sub are permitted to accept and pay for under applicable lawCo., will represent 50.1% of the shares of Company Common Stock outstanding.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 10.1 and (ii) none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or be existingexisting and not have been waived, as promptly as reasonably practicable but in no event Merger Subsidiary shall, not later than ten five business days after from the date first public announcement of the public announcement execution of this Agreement, Parent and Merger Sub shall commence the Offer. Each Share (including the associated Right) accepted by Merger Subsidiary in accordance with the Offer within shall be purchased for $1.17, net to the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")seller in cash, without interest. The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth (i) that there shall be validly tendered in Exhibit A. The initial accordance with the terms of the Offer prior to the expiration date of the Offer shall be and not withdrawn a number of Shares which, together with the 25th business day following the commencement Shares then owned by Parent and Merger Subsidiary, represents at least two thirds of the Offer total number of outstanding Shares, assuming the exercise of all outstanding warrants, options, rights and convertible securities (if any) (other than the Rights, Parent's option to acquire Company Common Stock pursuant to the Stock Option Agreement, to the extent not then exercised and options cancelled pursuant to Section 3.4(a) hereof) and the issuance of all Shares that the Company is obligated to issue pursuant thereto (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension Minimum Stock Condition"), (ii) that Parent shall have simultaneously accepted for payment Notes in each of the Offer as so extendedNotes Tender Offers, and (iii) that the other conditions set forth in Annex I hereto shall also be defined herein as an "Expiration Date")have been satisfied or waived. Parent and Merger Sub Subsidiary expressly reserve the right to waive any condition the conditions to the Offer or modify and to make any change in the terms or conditions of the Offer, except ; provided that, without the written consent of the Company, Merger Sub shall not (i) reduce no change may be made which changes the number form or amount of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price consideration to be paid pursuant (other than by adding consideration), imposes conditions to the Offer, (iii) change or waive the Minimum Tender Condition (as defined Offer in Exhibit A), add addition to the conditions those set forth in Exhibit A Annex I or modify changes or waives the Minimum Stock Condition or amends any condition set forth other term of the Offer in Exhibit A in any a manner materially adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend Shares. If on the initial scheduled expiration date of the Offer, (v) change which shall be no earlier than 20 business days after the form of consideration payable in date the Offer or (vi) otherwise amend the Offer in any manner adverse is commenced, all conditions to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such waived, Merger Subsidiary may, from time as such conditions are satisfied or waived to time, in its sole discretion, extend the extent permitted by this Agreementexpiration date; (B) provided that without the prior written consent of the Company, Merger Subsidiary may not extend the Offer for any period beyond March 15, 2002 (except that Parent may extend the expiration date of the Offer after March 15, 2002 as required by to comply with any rule, regulation, regulation or interpretation or position of the SEC applicable SEC). Subject to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject conditions of the Offer, Parent shall cause Merger Subsidiary to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchasepay for, as promptly as practicable after the date on which Parent or Merger Sub (as expiration of the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")Offer, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer. In addition, Merger Subsidiary may extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in accordance with the terms of the Offer, 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 Merger Sub are permitted to accept and pay for under applicable lawSubsidiary, represents at least 90% of the Fully Diluted Shares.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gaylord Container Corp /De/)
The Offer. The Merger Agreement provides that Purchaser, as assignee to all the rights and obligations of Flowers Bakeries under the Merger Agreement, will commence the Offer as promptly as practicable (aand in any event within 10 business days) after the execution of the Merger Agreement. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Condition and the other conditions that are described in Section 15 — “Certain Conditions of the Offer.” Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none satisfaction of the events set forth Minimum Condition and the other conditions that are described in paragraphs (a) through (e) or (h) Section 15 — “Certain Conditions of Exhibit A hereto shall have occurred or be existing, the Offer,” the Merger Agreement provides that Purchaser will accept for payment and pay for all Shares validly tendered and not properly withdrawn in the Offer as promptly as reasonably practicable but in no event later than ten business days on or after the date Expiration Date. Parent and Purchaser expressly reserved the right to increase the Offer Price, to make other changes in the terms and conditions of the public announcement of this AgreementOffer and to waive conditions to the Offer, except that Tasty Baking’s prior written approval is required for Parent and Merger Sub shall commence Purchaser to: • reduce the Offer within the meaning number of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are Shares subject to the conditions set forth in Exhibit A. The initial expiration date of Offer; • reduce the Offer shall be Price; • change, modify or waive the 25th business day following Minimum Condition; • add to the commencement of conditions to the Offer (Offer, other than the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extendedMinimum Condition, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive or modify or change any condition to the Offer in a manner adverse in any material respect to any of Tasty Baking’s shareholders; • except as provided for in the Merger Agreement, extend or modify otherwise change the terms expiration date of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) ; • change the form of consideration payable in the Offer Offer; or (vi) otherwise amend • amend, modify or supplement any other term of the Offer in any a manner adverse in any material respect to Tasty Baking’s shareholders. The Merger Agreement contains provisions to govern the holders of Company Common Stockcircumstances in which Purchaser is required or permitted to extend the Offer. Notwithstanding Specifically, the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time Agreement provides that: • Purchaser will extend the Offer ifto the extent required by applicable law or the rules, regulations, interpretations or positions of the SEC or its staff. • Purchaser may extend the Offer for successive periods of up to 10 business days each (or for a period up to 20 business days with Tasty Baking’s prior written consent) until the Outside Date, if at the then scheduled Expiration Date, any Date all of the conditions of to the Offer shall have not have been satisfied or waived by Parent or Purchaser. • Purchaser will extend the Offer on one occasion for a period of up to 7 business days if requested by Tasty Baking until such time as such the Outside Date, if at the then scheduled Expiration Date all of the conditions are to the Offer have not been satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer Parent or Purchaser. After acceptance for any period required by any rule, regulation, interpretation or position payment of the SEC applicable to Shares in the Offer; or (C) extend the Offer for , Purchaser may provide a "subsequent offering period" (as provided by Subsequent Offering Period not to exceed 10 business days in accordance with Rule 14d-11 under the Exchange Act) . Purchaser is required 19 Table of Contents to immediately accept for a period payment, and promptly pay for, all Shares validly tendered in any Subsequent Offering Period. Purchaser has agreed that it will not terminate the Offer prior to any scheduled Expiration Date without the written consent of three Tasty Baking, except if the Merger Agreement is terminated pursuant to twenty business days its terms. If Purchaser terminates or withdraws the Offer in order to acquire at least 90% accordance with the terms of the outstanding shares of Merger Agreement or the Company Common Stock. On the terms and subject Merger Agreement is terminated pursuant to the conditions its terms, then Purchaser is required to promptly terminate the Offer that are set forth and the Depositary will return all Shares tendered in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
Samples: Merger Agreement (Flowers Foods Inc)
The Offer. (a) Subject Upon the terms and subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs the Merger Agreement, Purchaser has agreed to commence a cash tender offer (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but and in no event later than ten fifteen (15) business days after the date of the public announcement Merger Agreement) for all of this Agreement, Parent and Merger Sub shall commence the Shares at the Offer within Price, net to the meaning of the applicable rules seller in cash, without interest and regulations of the Securities and Exchange Commission (the "SEC")subject to any withholding taxes. The obligations of Parent and Merger Sub Purchaser's obligation to accept for payment, payment and pay for, any shares of Company Common Stock for Shares validly tendered and not validly withdrawn pursuant to the Offer are is subject to the satisfaction of the Minimum Tender Condition, the Termination Condition, the Antitrust Condition and the satisfaction or waiver of the other conditions set forth in Exhibit A. The initial expiration date Section 14—"Conditions of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date,Offer." and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub Purchaser expressly reserve reserves the right to waive any condition of the conditions to the Offer (other than the Minimum Tender Condition and the Termination Condition) or modify the terms of the OfferOffer in any manner not inconsistent with the Merger Agreement, except that, without the written consent of the Company, Merger Sub shall it will not, and Parent will not (i) permit Purchaser to: • reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) ; • reduce the Offer Price (except to be paid the extent required pursuant to the OfferMerger Agreement); • amend, (iii) change modify, supplement or waive the Minimum Tender Condition (as defined in Exhibit A), or the Termination Condition; • add to or amend, modify or supplement any Offer Condition; • directly or indirectly amend, modify or supplement any other term of the conditions set forth Offer in Exhibit A or modify any condition set forth in Exhibit A individual case in any manner adverse to the holders of Company Common StockShares or that would, (iv) individually or in the Table of Contents aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger or impair the ability of Parent or Purchaser to consummate the Offer; • extend or otherwise change the Offer Expiration Time, except as provided below in this Section 1.01(a), extend expressly required or permitted by the Offer, (v) Merger Agreement; • change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this AgreementOffer; (B) extend the Offer • provide for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by or any extension thereof) within the meaning of Rule 14d-11 under the Exchange Act; or • take any action (or fail to take any action) for a period of three that would result in the Merger not being permitted to twenty business days in order be effected pursuant to acquire at least 90% Section 251(h) of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawDGCL.
Appears in 1 contract
Samples: The Merger Agreement (Alexion Pharmaceuticals, Inc.)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have having been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingARTICLE 10 hereof, as promptly as reasonably practicable but in no any event later than within ten business days after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall commence the Offer commence, within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, an offer to purchase (the "SECOFFER") all, and in any event not less than a majority on a fully diluted basis (assuming the exercise of all Options (as defined in Section 5.2(d)) that are then exercisable and any other rights to acquire shares of Common Stock on the date of purchase (a "FULLY DILUTED BASIS"), of the outstanding shares of Common Stock at a price of $3.00 per share of Common Stock, net to the seller in cash, without interest (such price or any higher price paid pursuant to the Offer, the "OFFER CONSIDERATION"). Notwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligations obligation of Parent Purchaser and Merger Sub to commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date EXHIBIT A hereto and to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, the Offer shall be expire 20 business days after the 25th business day following the commencement date of its commencement, unless this Agreement is terminated in accordance with ARTICLE 10, in which case the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer whether or modify not previously extended in accordance with the terms hereof) shall expire on such date of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawtermination.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Flipside Acquisition Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existing, Parent shall cause Subcorp to commence, and Subcorp shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")), as promptly as reasonably practicable practicable, but in no event later than ten five business days days, after the date of the public announcement of this Agreement, the Offer. Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub cause Subcorp to accept for payment, and pay forSubcorp shall accept for payment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of Company Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). Subcorp shall not accept for payment any shares of Company Common Stock tendered pursuant to the Offer are subject unless there shall have been validly tendered and not withdrawn prior to the conditions set forth in Exhibit A. The initial expiration date Expiration Date such number of shares of Company Common Stock that satisfy the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Minimum Condition. Parent and Merger Sub Subcorp expressly reserve reserves the right to increase the Per Share Amount and to waive any condition to the Offer or modify the terms of the Offer, except that, without the Minimum Condition. Without the prior written consent of the Company, Merger Sub Subcorp shall not (i) reduce decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce impose conditions to the Offer Price in addition to be paid pursuant to the Offerthose set forth in Annex A, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A)or, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a1.1(c) or (d), extend the Offer, (v) change the form expiration of consideration payable in the Offer beyond the initial Expiration Date, or (vi) otherwise amend any other term of the Offer in any a manner materially adverse to the holders Company Shareholders. The Per Share Amount shall be paid less any required withholding of Company Common Stock. Notwithstanding Taxes, upon the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company terms and in its sole and absolute discretion, (A) from time subject to time extend the Offer if, at the scheduled Expiration Date, any satisfaction or waiver of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all Annex A. The Company agrees that no shares of Company Common Stock validly held by the Company or any of its subsidiaries will be tendered and not withdrawn pursuant to in the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided The Offer. Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable (but in no event later than ten the fifth (5th) business days day after the date of the initial public announcement of this Agreement, Parent and Merger Sub shall Acquisition Sub's intention to commence the Offer (as hereinafter defined), Parent will cause Acquisition Sub to commence (within the meaning of Rule 14d-2 under the applicable rules Securities Exchange Act of 1934, as amended (the "Exchange Act")), and regulations Acquisition Sub will commence, an offer to purchase for cash any and all issued and outstanding Shares at a price of $15.50 per Share net to the seller in cash (as amended or supplemented in accordance with this Agreement, the "Offer"). The obligation of Parent and Acquisition Sub to consummate the Offer, to accept for payment and to pay for any Shares tendered is subject to the conditions set forth in Annex I, including, without limitation, that there be validly tendered and not withdrawn by the expiration date of the Offer a number of Shares which, together with Shares already beneficially owned by Parent and any of its wholly owned subsidiaries, would represent at least a majority of the outstanding Shares, calculated by taking into account the number of outstanding shares of Common Stock on the date of consummation of the Offer plus the number of shares subject to options to purchase shares of Common Stock outstanding as of consummation of the Offer, whether or not such options are exercisable or fully vested (the "Minimum Condition"). As soon as practicable on the date of commencement of the Offer, Parent and Acquisition Sub will file with the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant with respect to the Offer, a Tender Offer are subject Statement on Schedule 14D-l (which, together with all amendments and supplements thereto and including the exhibits thereto, is referred to herein as the conditions set forth "Schedule 14D-1") in Exhibit A. The initial expiration date accordance with applicable federal securities laws containing the terms of the Offer shall be and forms of related letters of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the 25th business day following "Offer Documents"). Parent will deliver copies of the proposed forms of the Schedule 14D-l and the Offer Documents to the Company within a reasonable time prior to the commencement of the Offer (for review and comment by the initial "Expiration Date," Company and its counsel. Parent agrees to provide the Company and its counsel with any written comments that Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The information provided and to be provided by Parent, Acquisition Sub and the Company for use in the Schedule 14D-l, and the Offer Documents and any expiration amendments or supplements thereto will not, in the case of the Schedule 14D-l at the time filed with the SEC and date established pursuant to an authorized extension in the case of the Offer Documents when first published, sent or given to the stockholders of the Company, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Parent and Acquisition Sub make no representation or warranty as to any of the information relating to and supplied in writing by the Company specifically for inclusion in the Schedule 14D-l or the Offer Documents and any amendments or supplements thereto and the Company makes no representation or warranty as to any information except that information relating to and supplied in writing by the Company specifically for inclusion in the Schedule 14D-1 or the Offer Documents and any amendments or supplements thereto. Parent, Acquisition Sub and the Company agree to promptly correct any such information in the Schedule 14D-1 or the Offer Documents that shall have become false or misleading in any material respect and each of Parent and Acquisition Sub will take all steps necessary to cause such Schedule 14D-1 or Offer Documents as so extended, shall also corrected to be defined herein as an "Expiration Date"). Parent filed with the SEC and Merger Sub expressly reserve the right to waive any condition disseminated to the Offer or modify the terms stockholders of the Company, as and to the extent required by applicable federal securities laws. The Company agrees that, subject to Section 6.2 hereof, the Offer Documents shall contain the unanimous recommendation of the Board of Directors of the Company that the holders of the Shares accept the Offer, except that. The Offer will initially expire twenty (20) business days after its commencement. Neither Parent nor Acquisition Sub will, without the prior written consent of the Company, Merger Sub shall not (i) reduce decrease the number of shares of Company Common Stock subject to price per Share payable in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer Offer, decrease the number of Shares sought pursuant to the Offer, change the conditions to the Offer, impose additional conditions to the Offer, waive the Minimum Condition, change the expiration date of the Offer, or (vi) otherwise amend any term of the Offer in any manner adverse to the holders of Shares; provided, however, that if any of the conditions described in Annex I exists at the time of the scheduled expiration date of the Offer, then Acquisition Sub may, in its sole discretion, giving prior notice to the Company, extend and reextend the Offer for periods of time (not to exceed ten (10) days in any particular instance) so that the expiration date of the Offer (as so extended) is as soon as reasonably practicable or advisable after the date on which the particular condition described in Annex I no longer exists (it being understood that a period of two (2) business days is reasonable for such purposes); provided further, that the Offer may not be so extended and reextended beyond the earlier of: (i) five (5) business days before the date the meeting of the stockholders of the Company Common Stockto approve the Merger and this Agreement (as provided in Section 6.8); or (ii) ninety (90) days after the date of this Agreement. Notwithstanding the foregoing, Merger Acquisition Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for up to ten (10) business days in connection with any period required by any rule, regulation, interpretation or position of and each increase in the SEC applicable consideration to be paid pursuant to the Offer; or (C) . In addition, Acquisition Sub may extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under Offer, in its sole discretion, giving prior notice to the Exchange Act) Company, on one or more occasions for a period of three or periods not to twenty exceed in the aggregate ten (10) business days in order to acquire at least if on the date of any such extension less than 90% of the outstanding shares Shares have been validly tendered and not properly withdrawn pursuant to the Offer. Subject to the foregoing, assuming the prior satisfaction or waiver of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Acquisition Sub shall will accept for payment and purchasepayment, as promptly as practicable after in accordance with the date on which Parent or Merger Sub (as terms of the case may be) first accepts shares for payment Offer, Shares tendered pursuant to the Offer (as soon as permitted after the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawcommencement thereof.
Appears in 1 contract
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable (but in no event later than ten seven business days after the date of the public announcement of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "“SEC"”). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A. A (the “Offer Conditions”). The initial expiration date of the Offer shall be 12:00 midnight, New York City time, on the 25th 20th business day (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) following the commencement (within the meaning of Rule 14d-2 of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension Exchange Act) of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer Condition or modify the terms of the OfferOffer in any manner not inconsistent with this Agreement, except that, without the written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change the form of consideration payable in the Offer, (iv) waive, amend or waive modify the Minimum Tender Condition or the Termination Condition, (as defined in Exhibit A), add v) impose conditions or requirements to the conditions set forth in Exhibit A Offer other than the Offer Conditions or amend, modify or supplement any condition set forth in Exhibit A Offer Condition in any manner adverse to the holders of Company Common Stock, (ivvi) except as otherwise provided below in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (v) change the form of consideration payable in the Offer or (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common StockStock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Merger Sub may (but shall, and Parent shall not be obligated cause Merger Sub to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer iffor one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company), if at the scheduled Expiration Date, expiration date of the Offer any of the conditions of Offer Conditions (other than the Offer Minimum Tender Condition) shall not have been satisfied or waived waived, until such time as such conditions are shall have been satisfied or waived to the extent permitted by this Agreement; and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the SEC or the staff thereof applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub shall have the right to (Cand, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period one or more consecutive increments of three to twenty not more than five business days in order each (or for such longer period as may be agreed by the Company); provided that Merger Sub shall not be required to acquire at least 90% of extend the outstanding shares of Offer beyond the Company Common StockOutside Date. On the terms and subject only to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, in any event, no more than three business days after the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Acceptance Time”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is terminated in accordance with Section 8.01 prior to the Acceptance Time, Merger Sub shall, and Parent shall cause Merger Sub to, immediately, irrevocably and unconditionally terminate the Offer and Merger Sub shall neither acquire nor pay for shares of Company Common Stock pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub are permitted shall cause any depository acting on behalf of Merger Sub to accept and pay for under applicable lawreturn, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred and be continuing and not have been waived by Parent or be existingPurchaser, as promptly as reasonably practicable but after the date hereof (and, in any event, no event later than ten business days the tenth (10th) Business Day after the date of the public announcement of this Agreement), Parent shall cause Purchaser to, and Merger Sub shall Purchaser shall, commence the Offer (within the meaning of Rule 14d-2 under the applicable U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations of the Securities and Exchange Commission (thereunder, the "SECExchange Act")) the Offer to purchase for cash all Shares at the Offer Price. The obligations of Parent and Merger Sub Purchaser to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares validly tendered pursuant and not properly withdrawn on or prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be subject only to (i) there being validly tendered and not properly withdrawn prior to the 25th business day following expiration of the commencement Offer that number of Class A Shares which represents a majority of the Class A Shares outstanding on a fully diluted basis as of the expiration of the Offer (the initial "Expiration Date," Minimum Condition") and any expiration time and date established pursuant to an authorized extension of (ii) the other conditions set forth in Annex I hereto (the "Offer as so extended, shall also be defined herein as an "Expiration DateConditions"). Parent and Merger Sub expressly reserve the right to waive any condition Subject to the prior satisfaction or waiver (except that the Minimum Condition may not be waived) by Parent or Purchaser of the Minimum Condition and the Offer or modify Conditions, Purchaser shall, in accordance with the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce consummate the Offer Price to be paid and accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer. The Offer shall initially be scheduled to expire at midnight, New York City time, on the twentieth (iii20th) change or waive the Minimum Tender Condition Business Day (calculated as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to Rule 14d-1(g)(3) under the holders Exchange Act) following the commencement of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer; provided, (v) change however, that if on the form initial scheduled expiration date of consideration payable in the Offer or (vi) otherwise amend on any subsequent scheduled expiration date of the Offer (as extended in any manner adverse accordance with this Agreement) all conditions to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such waived, Purchaser may, from time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) time, in its sole discretion, extend the Offer for any period required by any ruleone or more periods of time of up to ten (10) Business Days each as Purchaser may determine; and provided, regulationfurther, interpretation or position that if on the initial scheduled expiration date of the SEC applicable Offer or on any subsequent scheduled expiration date of the Offer (as extended in accordance with this Agreement), the condition to the Offer; or Offer set forth in paragraph (Cf) of Annex I hereto has not been satisfied, Purchaser shall be obligated to extend the Offer for a "subsequent offering period" one or more periods of time of up to ten (as provided by Rule 14d-11 under the Exchange Act10) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common StockBusiness Days each until such condition has been satisfied. On the terms and subject to the conditions to In no event shall Purchaser extend the Offer that are set forth in following the termination of this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bureau of National Affairs Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A Annex I hereto shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable after the date hereof, but in no event later than ten the fifth business days day after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase all of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any outstanding shares of Company Common Stock at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for shares of Company Common Stock validly tendered pursuant to the Offer are and not subsequently withdrawn shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the “Offer Conditions”). The initial expiration date of the Offer shall be the 25th business day following the commencement of on which Merger Sub “commences” the Offer (within the initial "Expiration meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to as the “Offer Commencement Date," and any expiration time and date established pursuant to an authorized extension of ”. To the Offer as so extendedextent permitted by applicable Law, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve reserves the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of the Offer, except that, that without the written prior consent of the Company, Merger Sub shall not (iA) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number or percentage of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition (as defined in Exhibit AAnnex I), add (D) impose any conditions to the Offer in addition to the conditions set forth in Exhibit A on Annex I, (E) amend or modify any condition set forth the Offer in Exhibit A in any a manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to taken as a whole, or (F) extend the Expiration Date (as defined in Annex I) except as required or permitted by this Section 1.1(a) . The Expiration Date shall be the 20th Business Day next following the Offer that Parent and Merger Sub are permitted to accept and pay for Commencement Date (calculated as set forth in Rule 14d-1(a) (3) under applicable lawthe Exchange Act).
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existingcontinuing, Purchaser shall, and Parent shall cause Purchaser to, commence the Offer as promptly as reasonably practicable after the date hereof (but in no event later than ten (10) business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger Sub Purchaser to accept for payment, and pay for, any shares of Company Common Stock payment Securities tendered pursuant to the Offer are shall be subject only to (i) the condition (the "Minimum Condition") that there shall have been validly tendered and not withdrawn prior to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce at least the number of shares of Company Common Stock, shares of Company Series A Preferred Stock subject and Warrants (determined as if shares of Company Series A Preferred Stock and Warrants have been converted into or exercised for shares of Company Common Stock) that, when added to Securities already owned by Parent, Purchaser and their subsidiaries, shall constitute two-thirds of the Offer, then outstanding shares of Company Common Stock on a Fully Diluted Basis and (ii) reduce the Offer Price to be paid pursuant to satisfaction or waiver of each of the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions set forth in Exhibit Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made which decreases the Per Share Amount or modify any condition set forth which reduces the maximum number of Securities to be purchased in Exhibit A the Offer or which modifies in any manner adverse to the holders of Company Common StockSecurities or adds conditions to the Offer in addition to those set forth in Annex A hereto and that Purchaser shall not, without the consent of the Company, waive or change the Minimum Condition, change the scheduled expiration date of the Offer (iv) except as provided below in this Section 1.01(a), extend the Offer, (vnext sentence) or change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Purchaser may, without the consent of the Company and in its sole and absolute discretion, Company: (Ai) from time to time extend the Offer in increments of no more than five (5) business days each beyond the scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer, if, at the scheduled Expiration Dateexpiration of the Offer, any of the conditions to Purchaser's obligation to accept Securities for payment shall not be satisfied or waived, provided that the Purchaser may not extend the Offer pursuant to this clause (i) for more than 10 business days in total if all of the Offer shall not conditions set forth in Annex A hereto other than the Financing Condition have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.of
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A Annex I hereto shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable after the date hereof, but in no event later than ten business days after the date of the public announcement of this AgreementMarch 2, Parent and 2007, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer to purchase any and regulations all of the Securities and Exchange Commission (outstanding shares of Company Common Stock at the "SEC")Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, payment and pay for, any for shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer Annex I hereto (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the “Offer as so extended, shall also be defined herein as an "Expiration Date"Conditions”). Parent and Merger Sub expressly reserve reserves the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of the Offer, except that, that without the prior written consent of the Company, Merger Sub shall not (iA) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition condition set forth in paragraph 1(a) of Annex I, (as defined in Exhibit A), D) add to the conditions set forth in Exhibit A or on Annex I, (E) modify any condition the conditions set forth in Exhibit A Annex I in any a manner adverse to the holders of shares of Company Common Stock, (ivF) extend the Expiration Date (as defined in Annex I) except as provided below in required or permitted by this Section 1.01(a1.1(a), extend the Offer, or (vG) make any other change the form of consideration payable in the Offer terms or (vi) otherwise amend conditions of the Offer in any manner which is adverse to the holders of shares of Company Common Stock. The initial Expiration Date shall be the twentieth business day following (and including the day of) the commencement of the Offer. If any of the Offer Conditions is not satisfied or waived on any scheduled Expiration Date, if such Offer Condition(s) could reasonably be expected to be satisfied, Merger Sub shall extend the Offer from time to time until such Offer Condition(s) are satisfied or waived. Any individual extension of the Offer pursuant to the preceding sentence shall not exceed 10 business days and in no event shall the Offer extend beyond the Walk-Away Date without the mutual written consent of the Company and Parent. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretionCompany, (A) from time Merger Sub shall have the right to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law. Following expiration of the Offer; or (C) extend the Offer for , Merger Sub may, in its sole discretion, provide a "subsequent offering period" period (as provided by the “Subsequent Offering Period”) in Table of Contents accordance with Rule 14d-11 under of the Exchange Act) for a period of three . Subject to twenty business days in order the foregoing, and to acquire at least 90% the satisfaction, or waiver by Merger Sub, of the outstanding shares Offer Conditions as of the Company Common Stock. On time of any scheduled expiration of the terms and subject to the conditions to the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause it to, accept for payment payment, as promptly as permitted under applicable securities laws, and purchasepay for, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares of Company Common Stock for payment pursuant to the Offer (the "“Acceptance Date"”), all shares of Company Common Stock (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period. Parent shall provide or cause to be provided to Merger Sub on a timely basis funds necessary to purchase all shares of Company Common Stock that Parent Merger Sub becomes obligated to purchase pursuant to the Offer and Merger Sub are permitted to accept and pay shall maintain such funds exclusively for under applicable lawsuch purpose.
Appears in 1 contract
Samples: Agreement of Merger (New River Pharmaceuticals Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs Section 7.1 hereof, Merger Sub shall (ai) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after following the date of the public announcement execution of this Agreement, Parent and Merger Sub shall commence in any event within three Business Days following the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of this Agreement (or such other later date as the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"parties may mutually agree in writing). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time amend its Prior Offer to time extend reflect the execution of this Agreement and the terms and conditions hereof (as the Prior Offer ifis amended to reflect the terms set forth herein, at the scheduled Expiration Date“Offer”), any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the SEC applicable an amendment to the Offer; or (C) extend the Offer for a "subsequent offering period" Prior Schedule TO (as provided by Rule 14d-11 under amended, and together with all other amendments and supplements thereto, the Exchange Act“Schedule TO”) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions with respect to the Offer that will comply in all material respects with the provisions of all applicable Federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase (defined below) and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are set forth in this Agreementreferred to collectively herein as the “Offer Documents”) and (ii) use reasonable best efforts to consummate the Offer, promptly after the Expiration Date, either Parent or Merger Sub shall accept including accepting for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares paying for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and at the Per Share Amount (defined below), as promptly as practicable. The Offer shall be made by means of an amendment to the prior offer to purchase (as amended, the “Offer to Purchase”) having only the conditions set forth in Annex III hereto (the “Tender Offer Conditions”). The obligation of Merger Sub are permitted to accept for payment and to pay for under any Shares validly tendered shall be subject solely to the satisfaction of the Tender Offer Conditions. The purchase price per share of Common Stock (the ”Per Share Amount”), which is currently $43.50 per Share, shall be net to the seller in cash, subject to reduction only for any applicable lawFederal back-up withholding or stock transfer taxes payable by such seller. The Company agrees that no Shares held by the Company or any of its Subsidiaries (other than any Shares held on behalf of third parties) will be tendered pursuant to the Offer. For the avoidance of doubt, the parties hereto agree that Restricted Shares may be tendered in the Offer and be acquired by Parent or Merger Sub pursuant to the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (BMCA Acquisition Sub Inc.)
The Offer. (a) Subject to the conditions of this Agreement Agreement, Purchaser shall, and provided that this Agreement Parent shall not have been terminated in accordance with its terms pursuant cause Purchaser to Article VII hereof and none of the events set forth in paragraphs use commercially reasonable efforts to commence within five (a5) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after Business Days from the date of hereof (and in any event Purchaser shall, and Parent shall cause Purchaser to, commence within ten (10) Business Days from the public announcement of this Agreementdate hereof), Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Purchaser to, and of Parent and Merger Sub to cause Purchaser to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer are shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of the Company Common Stock that, together with shares of the Company Common Stock already owned by Parent and Purchaser or their respective Affiliates, which shall include, for the avoidance of doubt, Xxxxxx X. Xxxxxxxx, 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. C as such conditions may be modified in accordance with the express terms of this Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the 25th business day twentieth (20th) Business Day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension determined using Rule 14d-1(g)(3) of the Offer as so extended, shall also be defined herein as an "Expiration Date"Exchange Act). Parent and Merger Sub Purchaser expressly reserve reserves the right in its sole discretion to waive waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of the Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change waive or waive amend the Minimum Tender Condition Condition, (as defined in Exhibit A), iv) add to the conditions set forth in Exhibit A C or modify any condition set forth in Exhibit A C in any manner adverse to the Company or the holders of the Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a2.1(a), extend the Offer, (v) Offer or change the form of consideration payable in the Offer or (vivii) otherwise amend the Offer in any manner adverse to the Company or the holders of the Company Common Stock. Notwithstanding The parties hereto agree to cooperate in good faith to modify the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions terms of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived and if required by the SEC. Notwithstanding any provision of this Agreement to the extent permitted by this Agreement; (B) contrary, Purchaser shall extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or 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 (Ci) any condition to the Offer is not satisfied, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for a "subsequent offering period" one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as provided may be agreed to by Rule 14d-11 under the Exchange ActCompany) for a period of three to twenty business days in order to acquire and (ii) if the Marketing Period has not ended at least 90% the time of the outstanding shares satisfaction or waiver of the Company Common Stockconditions set forth in Exhibit C, Purchaser may, and Parent may cause Purchaser to, extend the Offer to a date that is not more than (2) two Business Days after the end of the Marketing Period; 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. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration DatePurchaser shall, either and Parent or Merger Sub shall cause Purchaser to, accept and pay for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment subject to any withholding of Tax pursuant to the Offer (the "Acceptance Date"Section 3.2(e), ) all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Parent Purchaser becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer (as it may be extended and Merger Sub are permitted to accept and pay for under applicable lawre-extended in accordance with this Section 2.1(a)). Nothing contained in this Section 2.1(a) shall affect any termination rights in Article VIII.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mortons Restaurant Group Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not --------- have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto no event shall have occurred or be existingcircumstance shall exist which constitutes a failure to satisfy any of the conditions set forth in Annex A hereto, Subsidiary shall commence the Offer as promptly as reasonably practicable practicable, but in no event later than ten the fifth business days after the date of day following the public announcement of the terms of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger Sub Subsidiary to accept for payment, payment and pay for, any shares of Company Common Stock for Shares tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date condition that a number of Shares representing not less than 75% of the Offer Company's outstanding voting power (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) shall be have been validly tendered and not withdrawn prior to the 25th business day following the commencement expiration of the Offer (the initial "Expiration Date," Minimum Condition"), and any expiration time and date established pursuant the obligation of Subsidiary to an authorized extension of commence the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition accept for payment and pay for Shares tendered pursuant to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock be subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions set forth in Exhibit Annex A or modify any condition hereto. It is agreed that the Minimum Condition and the other conditions set forth in Exhibit Annex A hereto are for the sole benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any such condition. Subsidiary expressly reserves the right in its sole discretion to waive, in whole or in part, at any manner adverse time or from time to time, any such condition, to increase the holders price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; provided that --------- Subsidiary may only waive the Minimum Condition as long as Subsidiary purchases at least a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) and that, unless previously approved by the Company Common Stockin writing, (iv) except as provided below no change may be made that decreases the price per Share payable in this Section 1.01(a), extend the Offer, (v) change changes the form of consideration payable in the Offer, reduces the maximum number of Shares that Subsidiary offers to purchase in the Offerbelow a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel), imposes conditions to the Offer in addition to those set forth in Annex A hereto or (vi) otherwise amend amends the terms of the Offer in any manner way that would be materially adverse to the holders of Company Common StockShares. Notwithstanding Subject to the foregoingnext sentence, Merger Sub may (but shall not be obligated to)Subsidiary covenants and agrees that, subject to the terms and conditions of this Agreement, including, without the consent of the Company and in its sole and absolute discretionlimitation, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this AgreementAnnex A hereto, promptly after the Expiration Date, either Parent or Merger Sub Subsidiary shall accept for payment and purchase, as promptly as practicable after the date on pay for Shares which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock have been validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are as soon as it is permitted to accept and pay for do so under applicable law. Notwithstanding the foregoing, Subsidiary (i) may extend the Offer to purchase Shares in excess of the Shares required to satisfy the Minimum Condition up to the tenth business day following the date on which all conditions to the Offer shall first have been satisfied or waived, provided that, by virtue of making any such extension, Subsidiary shall be deemed to waive and thereafter shall not be entitled to assert any of the conditions to the consummation of the Offer contained in subsections (b), (c), (d) and (e) to Annex A hereto, (ii) shall extend the Offer at least until 11:59 p.m. New York City time on the sixth business day following the delivery to Parent of a Notice of Superior Proposal (as defined in Section 6.8) and (iii) shall extend the Offer at least until the expiration of the period set forth in paragraph (d) or (e) of Annex A if a notice of breach has been delivered in accordance therewith. The Per Share Amount payable in the Offer shall be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer.
Appears in 1 contract
Samples: Acquisition Agreement (International Murex Technologies Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs subparagraphs (a) through (e) or (h) of Exhibit A hereto Annex I shall have occurred and be continuing and not have been waived by Parent or be existingMerger Sub, as promptly as reasonably practicable but and, in no event later than ten business days after any event, within five (5) Business Days of the date of the public announcement of this Agreement, Parent and Merger Sub shall commence amend the Pending Offer within to reflect the meaning execution of this Agreement and the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")terms hereof. The obligations of Parent and Merger Sub to accept for payment, payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for, ) any shares of Company Common Stock validly tendered pursuant on or prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer and not properly withdrawn shall be subject to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the 25th business day following the commencement expiration of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the that number of shares of Company Common Stock subject which represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis, including after giving effect to the Offerissuances of shares of Company Common Stock pursuant to Section 2.12 (the “Minimum Condition”), and (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse Annex I. Subject to the holders of Company Common Stock, prior satisfaction or waiver (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse subject to the holders provisions of Company Common Stock. Notwithstanding the foregoing, this Agreement) by Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer, which shall initially be the later of the expiration date of the Pending Offer as of the date of this Agreement or the date that is fifteen (15) Business Days after the date of this Agreement; 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 until waived, Merger Sub may, from time to time, in its sole discretion, extend the Offer for such time period as such conditions are satisfied or waived to the extent permitted by this Agreement; Merger Sub may determine, (By) Merger Sub may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC (or the staff thereof) or the NYSE applicable to the Offer; or Offer and (Cz) extend the Offer for Merger Sub may, in its sole discretion, provide a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days ; provided that, in order to acquire at least 90% of no event shall the outstanding shares Offer extend beyond the Walk-Away Date without the mutual written consent of the Company Common Stockand Parent. On Merger Sub expressly reserves the right from time to time to waive any of the conditions set forth in Annex I (other than the Minimum Condition, the Registration Condition and the Listing Condition) or to increase the Offer Price or to make any other changes in the terms and subject to conditions of the conditions to Offer; provided that, without the Offer that are set forth in this Agreementprior written consent of the Company, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to not decrease the Offer (Price, change the "Acceptance Date")form of consideration payable in the Offer, all decrease the number of shares of Company Common Stock validly tendered and not withdrawn pursuant sought to be purchased in the Offer, impose additional conditions to the Offer, reduce the time period during which the Offer that Parent and Merger Sub are shall remain open or, except for any extension required or permitted hereunder, extend the Offer, or amend any other term of the Offer in any manner adverse to accept and pay for under applicable lawthe holders of shares of Company Common Stock.
Appears in 1 contract
Samples: Agreement and Plan of Merger (CF Industries Holdings, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 11 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existing, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, as promptly as reasonably practicable after the date hereof (but in no event later than ten business days the fifth Business Day after the date of the public announcement of the terms of this Agreement), Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2(a) of the Securities and Exchange Commission 1934 Act), an offer (the "SECOffer"). The obligations ) to purchase (x) any and all of Parent and Merger Sub to accept for payment, and pay for, any the outstanding shares of Company Common Class A Stock tendered pursuant to for a purchase price of $64.00 per share (the "Class A Offer are Price") and (y) any and all (subject to the Minimum Condition (as defined below)) of the outstanding shares of Company Class B Stock for a purchase price of $6.40 per share (the "Class B Offer Price" and, together with the Class A Offer Price, the "Offer Price"), in each case, net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in Exhibit A. this Agreement. The initial expiration date of the Offer shall be the 25th business day following twentieth Business Day from and after the commencement date the Offer is commenced (the "Initial Expiration Date"). The obligation of Merger Subsidiary to accept for payment, purchase and pay for any shares of Company Stock tendered pursuant to the Offer shall be subject, except as provided in Section 2.01(b), only to the satisfaction of (i) the condition that at least 45,815,000 shares of Company Class B Stock (subject to adjustment for stock splits, stock dividends, recapi- talizations and similar events) (less any shares of Company Class B Stock owned by Parent or Merger Subsidiary or any Affiliate of Parent or Merger Subsidiary on the date such shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the expiration of the Offer (the initial "Expiration Date," Minimum Condition") and any expiration time and date established pursuant to an authorized extension of (ii) the Offer as so extendedother conditions set forth in Annex A hereto; provided, shall also be defined herein as an "Expiration Date"). Parent and however, that Merger Sub Subsidiary expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth (other than the Minimum Condition) and to make any change in this Agreementthe terms or conditions of the Offer (other than the Minimum Condition) in its sole discretion, promptly after subject to Section 2.01(b). Notwithstanding the Expiration Dateprevious sentence, either Parent or Merger Sub shall accept for payment Subsidiary may waive the Minimum Condition so long as (x) it has irrevocably waived all other conditions to the Offer (and purchasemay, as promptly as practicable after a legal matter, irrevocably waive such conditions and otherwise purchase shares of Company Stock pursuant to the date on which Offer), (y) Parent has irrevocably exercised or Merger Sub irrevocably committed to exercise the Option and (as z) the case may be) first accepts shares for payment of Company Stock acquired pursuant to the Offer and through such Option exercise would satisfy the Minimum Condition (such event being referred to as a "Constructive Satisfaction of the "Acceptance DateMinimum Condition"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided that Provided this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 7.1 and so long as none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit on Annex A hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but and in no any event later than ten business days within 10 Business Days after the date of hereof, Purchaser shall, and Parent shall cause Purchaser to, as the public announcement of this Agreementfirst step in completing the Merger, Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act"). The obligations of Parent and Merger Sub , an offer (the "Offer") to accept for payment, and pay for, any purchase all shares of the issued and outstanding Company Common Stock tendered together with the associated rights issued pursuant to the Rights Plan (as defined herein) (the "Company Rights") for the Offer are Price, subject only to the conditions set forth in Exhibit A. Annex A hereto; provided, however, that Parent may designate another wholly owned, direct subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(g)(2) under the Exchange Act) in the Offer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. Except where the context otherwise requires, all references herein to Shares or Company Common Stock shall include the associated Company Rights. The initial expiration date Company shall not tender Shares held by it or by any of its subsidiaries pursuant to the Offer. The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the prior satisfaction or waiver of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms conditions of the Offer, except that, without the written consent accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law and regulations. The obligations of the Company, Merger Sub shall not (i) reduce Purchaser to consummate the number of shares of Company Common Stock subject Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the Offer, (ii) reduce expiration of the Offer Price to and not withdrawn shall be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add subject only to the conditions set forth in Exhibit Annex A or modify any condition hereto. Notwithstanding anything to the contrary set forth herein, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend connection with the Offer, (v) change the form and in lieu thereof each tendering stockholder who would otherwise be entitled to a fractional share of consideration payable Parent Common Stock in the Offer or (viafter aggregating all fractional shares of Parent Common Stock that otherwise would be received by such stockholder) otherwise amend the Offer will be paid an amount in any manner adverse cash (rounded up to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (Anearest whole cent) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived equal to the extent permitted product obtained by this Agreement; multiplying (Bx) extend the Offer for any period required fractional share interest to which such stockholder would otherwise be entitled by any rule, regulation, interpretation or position of (y) the SEC applicable to the Offer; or (C) extend the Offer closing price for a "subsequent offering period" share of Parent Common Stock as reported on the New York Stock Exchange, Inc. (as provided by Rule 14d-11 under reported in The Wall Street Journal) on the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
Appears in 1 contract
The Offer. (a) Subject to If the conditions of this Merger Agreement and provided that this Agreement shall has not have been terminated in accordance and ArQule is prepared to file with its terms pursuant the SEC, and to Article VII hereof and none disseminate to holders of ArQule shares, the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSchedule 14D-9 on the same date as Purchaser commences the Offer, Purchaser has agreed to commence the Offer as promptly as reasonably practicable but practicable, and in no event later than ten business days after the date of the public announcement of this AgreementDecember 20, Parent 2019. Purchaser’s obligation to, and Merger Sub shall commence Xxxxxx’s obligation to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant is subject only to the Offer are subject satisfaction or, to the conditions set forth in Exhibit A. The initial expiration date extent waivable by TABLE OF CONTENTS Parent or Purchaser, waiver of each of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions Conditions that are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stockdescribed below. On the terms and subject to the conditions to and the Offer that are set forth in this Merger Agreement, promptly after the Expiration DatePurchaser will, either and Parent or Merger Sub shall will cause Purchaser to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer that pursuant to the Offer as promptly as practicable on or after the Expiration Date. Parent and Purchaser expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided that, unless otherwise provided in the Merger Sub are Agreement or previously approved by ArQule in writing, Parent and Purchaser will not: • decrease the Offer Price or change the form of consideration payable in the Offer; • decrease the maximum number of Shares subject to or sought to be purchased in the Offer; • impose conditions on the Offer in addition to the Offer Conditions; • waive, modify or amend the Minimum Condition or the Antitrust and Judgment/Illegality Conditions; • amend any other term of the Offer in a manner that would reasonably be expected to adversely affect any ArQule stockholder in its capacity as such; • extend or otherwise change the Expiration Date except as required or permitted by the terms of the Merger Agreement as described below; or • provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Merger Agreement contains provisions that govern the circumstances under which Purchaser is required or permitted to accept extend the Offer and pay under which Parent is required to cause Purchaser to extend the Offer. Specifically, the Merger Agreement provides that: • if on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions (as defined below in Section 15 – “Conditions of the Offer”) have not been satisfied or waived by Parent or Purchaser if permitted thereunder, then Purchaser may, and Parent may cause Purchaser to, in Parent’s and Purchaser’s sole discretion and without the consent of ArQule, extend the Offer on one or more occasions in consecutive increments of not more than 20 business days each (the length of such period to be determined by Parent and Purchaser in their discretion), or for under such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Purchaser to waive any Offer Conditions, other than the Minimum Condition); • Purchaser will, and Parent will cause Purchaser to, extend the Offer for (x) the minimum period required by applicable law, interpretation or position of the SEC or its staff or Nasdaq or its staff and (y) periods of not more than 10 business days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act has expired or been terminated; and • if, on the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, at the request of ArQule, Purchaser will, and Parent will cause Purchaser to, extend the Offer on one or more occasions in consecutive increments of not more than 10 business days each. The Merger Agreement provides that Purchaser will not in any event be required to, and Parent will not in any event be required to cause Purchaser to, (i) extend the Offer beyond the Outside Date or (ii) extend the Offer beyond the initial Expiration Date on more than three occasions, not to exceed an aggregate of 30 business days (provided that each such extension will be 10 business days unless ArQule agrees otherwise), if, as of the applicable Expiration Date, all of the Offer Conditions are satisfied or have been waived other than the Minimum Condition and conditions which by their nature are to be satisfied at the expiration of the Offer. If the Merger Agreement is validly terminated, Purchaser will, and Parent will cause Purchaser to, promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, will not acquire any Shares pursuant to the Offer and will cause any depository acting on behalf of Purchaser to return, in accordance with applicable law, all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Merck & Co., Inc.
The Offer. (a) Subject Terms of the Offer; Conditions to the conditions of this Agreement and provided Offer. Provided that this Agreement shall not have been earlier terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingARTICLE VIII, as promptly as reasonably practicable after the date hereof (but in no event later more than ten five (5) business days after the date of the public announcement of this Agreementthereafter), Parent and Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Securities Exchange Act of 1934, as amended (the “Exchange Act”)) a cash tender offer (the “Offer”) to purchase any and regulations all of the Securities outstanding shares of Company Common Stock at a price per share of Company Common Stock, subject to the terms of Section 1.1(b), equal to a price of Two Dollars and Exchange Commission Fifteen Cents ($2.15) per share of Company Common Stock, net to the "SEC"holder thereof in cash (such amount, or any different amount per share of Company Common Stock that may be paid pursuant to the Offer, is the “Per Share Amount”). The obligations obligation of Parent and Merger Sub to accept for payment, payment and to pay for, for any outstanding shares of Company Common Stock tendered (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for any Company Shares tendered) pursuant to the Offer are shall be subject only to (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration of the Offer (as it may be extended from time to time pursuant to Section 1.1(c) there be validly tendered in accordance with the terms of the Offer and not withdrawn a number of shares of Company Common Stock that, together with the outstanding shares of Company Common Stock then owned by Parent (if any) and Merger Sub, and their direct and indirect wholly owned subsidiaries and affiliates, represents at least 50.01% of all then outstanding shares of Company Common Stock calculated on a fully diluted basis (including, without limitation, all shares of Company Common Stock 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 (including for this purpose any securities which become convertible or exercisable as a result of conversion pursuant to Section 2.7(a)) on or prior to October 31, 2006 shall have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver in accordance with the terms of this Agreement of each of the other conditions set forth in Exhibit Annex A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition such condition, to increase the Offer or modify Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, without that unless previously approved by the written consent Company in writing, neither Parent nor Merger Sub may make any change to the terms and conditions of the Company, Merger Sub shall not Offer that (i) reduce decreases the Per Share Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend imposes conditions to the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject addition to the conditions to the Offer that are set forth in this AgreementAnnex A, promptly after (v) amends the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant conditions to the Offer set forth in Annex A so as to broaden the scope of such conditions to the Offer, (vi) extends the "Acceptance Date"Offer except as provided in Section 1.1(c), all (vii) amends or waives the Minimum Condition, or (viii) makes any other change to any of the terms and conditions of the Offer in any manner that is adverse to the holders of shares of Company Common Stock validly tendered and not withdrawn pursuant in the reasonable good faith judgment of the Company. The conditions to the Offer that set forth in Annex A are for the sole benefit of Parent and Merger Sub are permitted and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to accept time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and pay for under applicable lawMerger Sub only with the prior written consent of the Company. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bio Lok International Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.1, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 promulgated by the applicable rules and regulations of the United States Securities and Exchange Commission (the "“SEC"”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer; provided, however, that the Offer shall be commenced no earlier than January 10, 2011, and in no event later than January 25, 2011. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date A (the “Offer Conditions”). Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall be expire at the 25th business later of (i) 5:00 p.m. (Eastern time) on February 11, 2011 and (ii) midnight (Eastern time) at the end of the day on the 20th Business Day following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the initial "Exchange Act) (such later date, the “Initial Expiration Date," and any expiration time and date established ”) or, in the event the Initial Expiration Date has been extended pursuant to an authorized extension of and in accordance with this Agreement, the date to which the Offer as has been so extended, shall also be defined herein as an "extended (the Initial Expiration Date", or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”). Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (iand Parent shall not permit Merger Sub to) (A) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the Offer Price to be paid pursuant to the OfferPrice, (iiiC) change or waive the Minimum Tender Condition (as defined in Exhibit A), add (D) impose conditions or requirements to the conditions set forth Offer that are different than or in Exhibit A addition to the Offer Conditions or amend or modify any condition set forth Offer Condition in Exhibit A in any a manner adverse adverse, or that reasonably would be expected to be adverse, to the holders of Company Common Stock, (ivE) extend the Offer (except as provided below in required or permitted by the other provisions of this Section 1.01(a1.1), extend the Offer, (vF) change the form of consideration payable in the Offer or (viG) otherwise amend the Offer in any manner adverse in a material respect to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth As used in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.“
Appears in 1 contract
Samples: Agreement and Plan of Merger (Martek Biosciences Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII, and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto that no event shall have occurred or and be existingcontinuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions in Annex I, as promptly as reasonably practicable but (and in no any event later than ten business days within five (5) Business Days) after the date of the public announcement of this Agreementhereof, Parent and Merger Acquisition Sub shall commence the Offer (and Parent shall cause Acquisition Sub to) commence, within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Securities Offer, and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger Acquisition Sub to accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer Offer, shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not subject to: (i) reduce there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock which, together with the number of shares of Company Common Stock subject (if any) then owned of record by Parent or Acquisition Sub or with respect to which Parent or Acquisition Sub otherwise has, directly or indirectly, sole voting power, represents at least 60% of the Offershares of Common Stock then outstanding (determined on a fully diluted basis) and no less than 60% of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the election of directors (collectively, the “Minimum Condition”); and (ii) reduce the Offer Price to be paid pursuant to satisfaction, or waiver by Parent or Acquisition Sub, of the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions and requirements set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the Annex I. The conditions to the Offer that are set forth in this Agreement, promptly after Annex I are for the Expiration Date, either sole benefit of Parent and Acquisition Sub and may be asserted by Parent or Merger Acquisition Sub shall accept for payment and purchase, as promptly as practicable after regardless of the date on which circumstances (including any action or inaction by Parent or Merger Sub (as Acquisition Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the case Agreement) giving rise to such condition or may be) first accepts shares for payment pursuant be waived by Parent or Acquisition Sub, in their sole discretion, in whole or in part at any time and from time to the Offer (the "Acceptance Date")time, all shares of Company Common Stock validly tendered and not withdrawn pursuant subject to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawthis Section 2.1.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII VIII hereof and so long as none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit on ANNEX A hereto (the "TENDER OFFER CONDITIONS") shall have occurred or be existingand are continuing, as promptly as practicable after the date of this Agreement, Sub shall and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer as promptly as reasonably practicable (but in no event later than ten business days five (5) Business Days after the date of the first public announcement of this Agreement, Parent and Merger Sub shall commence Agreement by the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"Company). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following twentieth Business Day from and after the commencement of date the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Initial Expiration Date"). The obligation of Sub to accept for payment and to pay for any Shares tendered shall be subject to the Tender Offer Conditions, any of which may be waived by Parent or Sub in whole or in part in their sole discretion; PROVIDED, HOWEVER, that Sub shall not waive the Minimum Condition without the prior consent of the Company. Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except thatincluding, without limitation, to extend the Offer beyond any scheduled expiration date; PROVIDED, HOWEVER, that neither Parent nor Sub shall, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock Shares subject to the OfferOffer or waive the Minimum Condition, (ii) reduce the Offer Price to be paid pursuant Price, (iii) impose any additional conditions to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (viv) otherwise amend make any change to the terms of the Offer (including the Tender Offer Conditions) which is materially adverse in any manner adverse to the holders of Company Common Stockthe Shares. Notwithstanding Subject to the foregoing, Merger Sub may (but shall not be obligated to), without the consent prior satisfaction or waiver of the Company Tender Offer Conditions, Sub shall, and in its sole and absolute discretionParent shall cause Sub to, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchasepay for, as promptly as practicable after in accordance with the date on terms of the Offer, the Shares which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock have been validly tendered and not withdrawn at or prior to the expiration of the Offer promptly after the expiration of the Offer and in any event no later than three (3) Business Days following the expiration of the Offer. Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to accept for payment and pay for any and all Shares that Sub becomes obligated to accept for payment and pay for pursuant to the Offer that Offer. Parent and Merger Sub shall have the right, in their sole discretion, to extend the expiration date of the Offer, from time to time, for successive periods of up to twenty (20) Business Days each, but in no event, later than the Termination Date, if the Tender Offer Conditions have not been met. If on any scheduled expiration date of the Offer, the Offer would have expired without any Shares being purchased because the Tender Offer Conditions have not been met, Parent and Sub shall, at the request of the Company (subject always to the terms and conditions of this Agreement), extend the expiration date of the Offer, from time to time, for successive periods of up to twenty (20) Business Days each (but in no event later than the Termination Date) unless such conditions are permitted not capable of being satisfied prior to accept the Termination Date. In addition, notwithstanding anything in this Section 2.1(a) to the contrary, if not already disclosed in the Offer to Purchase, Parent and pay Sub may amend the Schedule TO to permit the announcement of a subsequent offering period (as such term is defined in Rule 14d-1 promulgated under the Exchange Act (the "SUBSEQUENT OFFER PERIOD")) to the Offer, and Sub may include a Subsequent Offer Period to the Offer for under applicable lawup to a maximum of twenty (20) Business Days.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Delta I Acquisition Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 10.1 hereof, as promptly as reasonably practicable practicable, but in no event later than ten five business days after the date of following the public announcement of the terms of this Agreement (which public announcement shall occur no later than the first business day following the execution of this Agreement), Purchaser shall, and Parent and Merger Sub shall cause Purchaser to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act) a tender offer (as it may be amended from time to time as permitted by this Agreement, the "OFFER") to purchase all of the Securities shares of Company Common Stock issued and Exchange Commission outstanding (including the related Rights) at a price of U.S.$73.00 per share, net to the seller in cash (such price, or such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "SECOFFER PRICE"). The obligations obligation of Parent and Merger Sub Purchaser to accept for paymentpayment and pay for shares of Company Common Stock (including the related Rights) tendered pursuant to the Offer shall be subject only to the condition that there shall be validly tendered (other than by guaranteed delivery where actual delivery has not occurred) in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock then owned by Parent and/or Purchaser, represents at least two-thirds of the shares of Company Common Stock outstanding on a fully diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights to acquire, and pay forsecurities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the time of determination, other than potential dilution attributable to the Rights) (the "MINIMUM CONDITION") and to the satisfaction or waiver by Purchaser as permitted hereunder of the other conditions set forth in Annex I hereto. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") and the related letter of transmittal, each in form reasonably satisfactory to the Company, containing the terms set forth in this Agreement and the conditions set forth in Annex I. Parent and Purchaser agree that the Offer to Purchase will state at least in the summary term sheet and in appropriate places in the Offer to Purchase that "Purchaser's obligation to purchase shares of Company Common Stock under the Offer is not conditioned on any financing arrangements or subject to any financing condition." Without limiting the foregoing, effective upon acceptance for payment of the Company Common Stock pursuant to the Offer in accordance with the terms hereof, the holder of such Company Common Stock will sell and assign to Purchaser all right, title and 10 15 interest in and to all of the shares of Company Common Stock tendered pursuant (including, but not limited to, such holder's right to any and all dividends and distributions with a record date before, and a payment date after, the scheduled or extended expiration date). Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive any of the conditions to the Offer are subject and to the conditions set forth make any change in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of or conditions to the Offer, except that, ; provided that (i) the Minimum Condition may not be waived or changed without the prior written consent of the CompanyCompany and (ii) no change may be made that changes the form of consideration to be paid, Merger Sub shall not (i) reduce decreases the Offer Price, decreases the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce adds to or modifies any of the conditions to the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify Annex I, makes any condition set forth other change in Exhibit A the terms of the Offer that is in any manner adverse to the holders of the Company Common Stock, Stock or (iv) except as provided below in this Section 1.01(a), extend the next sentence) changes the expiration date of the Offer, (v) change without the form prior written consent of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockCompany. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without Without the consent of the Company and in its sole and absolute discretionCompany, Purchaser shall have the right to extend the expiration date of the Offer (which shall initially be 20 business days from the commencement date of the Offer), (Ai) from time to time extend the Offer if, at the scheduled Expiration Dateor extended expiration date of the Offer, any of the conditions of to the Offer shall not have been satisfied or waived or, to the extent permitted, waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law, (iii) for up to 10 additional business days in increments of not more than two business days each (but in no event beyond the Termination Date), if, immediately prior to the scheduled or extended expiration date of the Offer; , the Company Common Stock tendered and not withdrawn pursuant to the Offer constitutes more than 80% and less than 90% of the outstanding Company Common Stock, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer, or (Civ) extend as contemplated in Section 10.1(c)(i); provided, that, in the case of any extension under clause (iii), Parent or Purchaser may not thereafter assert the failure of any of the conditions provided for in clauses (a)(iii), (a)(iv), (a)(v) and (b)(ii) of Annex I or, for purposes of clause (b)(iii) or (c) of Annex I, a Company Material Adverse Effect or a material breach of a representation or warranty, in each such case, by reason of an event other than a breach of a covenant by the Company occurring after the initial extension under clause (iii). In addition, if, at the scheduled or extended expiration date of the Offer, the Minimum Condition has been satisfied but Company Common Stock tendered and not withdrawn pursuant to the Offer constitutes less than 90% of the outstanding Company Common Stock, without the consent of the Company, Purchaser shall have the right to provide for a "subsequent offering period" (as provided contemplated by Rule 14d-11 under the Exchange Act) for a period of three up to twenty 20 business days in order to acquire at least 90% after Purchaser's acceptance for payment of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly then tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 11 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existing, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, as promptly as reasonably practicable after the date hereof (but in no event later than ten business days the fifth Business Day after the date of the public announcement of the terms of this Agreement), Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2(a) of the Securities and Exchange Commission 1934 Act), an offer (the "SECOFFER"). The obligations ) to purchase (x) any and all of Parent and Merger Sub to accept for payment, and pay for, any the outstanding shares of Company Common Class A Stock tendered pursuant to for a purchase price of $64.00 per share (the Offer are "CLASS A OFFER PRICE") and (y) any and all (subject to the Minimum Condition (as defined below)) of the outstanding shares of Company Class B Stock for a purchase price of $6.40 per share (the "CLASS B OFFER PRICE" and, together with the Class A Offer Price, the "OFFER PRICE"), in each case, net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in Exhibit A. this Agreement. The initial expiration date of the Offer shall be the 25th business day following twentieth Business Day from and after the commencement date the Offer is commenced (the "INITIAL EXPIRATION DATE"). The obligation of Merger Subsidiary to accept for payment, purchase and pay for any shares of Company Stock tendered pursuant to the Offer shall be subject, except as provided in Section 2.01(b), only to the satisfaction of (i) the condition that at least 45,815,000 shares of Company Class B Stock (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events) (less any shares of Company Class B Stock owned by Parent or Merger Subsidiary or any Affiliate of Parent or Merger Subsidiary on the date such shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the expiration of the Offer (the initial "Expiration Date," MINIMUM CONDITION") and any expiration time and date established pursuant to an authorized extension of (ii) the Offer as so extendedother conditions set forth in Annex A hereto; provided, shall also be defined herein as an "Expiration Date"). Parent and however, that Merger Sub Subsidiary expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth (other than the Minimum Condition) and to make any change in this Agreementthe terms or conditions of the Offer (other than the Minimum Condition) in its sole discretion, promptly after subject to Section 2.01(b). Notwithstanding the Expiration Dateprevious sentence, either Parent or Merger Sub shall accept for payment and purchase, Subsidiary may waive the Minimum Condition so long as promptly as practicable after the date on which Parent or Merger Sub (as the case may bex) first accepts shares for payment pursuant it has irrevocably waived all other conditions to the Offer (the "Acceptance Date")and may, all as a legal matter, irrevocably waive such conditions and otherwise purchase shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Offer), (y) Parent has irrevocably exercised or irrevocably committed to exercise the Option and Merger Sub are permitted to accept and pay for under applicable law.(z)
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existing, Parent shall cause Subcorp to commence, and Subcorp shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the ”Exchange Act”)), as promptly as reasonably practicable practicable, but in no event later than ten five business days days, after the date of the public announcement of this Agreement, the Offer. Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub cause Subcorp to accept for payment, and pay forSubcorp shall accept for payment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of Company Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). Subcorp shall not accept for payment any shares of Company Common Stock tendered pursuant to the Offer are subject unless there shall have been validly tendered and not withdrawn prior to the conditions set forth in Exhibit A. The initial expiration date Expiration Date such number of shares of Company Common Stock that satisfy the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Minimum Condition. Parent and Merger Sub Subcorp expressly reserve reserves the right to increase the Per Share Amount and to waive any condition to the Offer or modify the terms of the Offer, except that, without the Minimum Condition. Without the prior written consent of the Company, Merger Sub Subcorp shall not (i) reduce decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce impose conditions to the Offer Price in addition to be paid pursuant to the Offerthose set forth in Annex A, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A)or, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a1.1(c) or (d), extend the Offer, (v) change the form expiration of consideration payable in the Offer beyond the initial Expiration Date, or (vi) otherwise amend any other term of the Offer in any a manner materially adverse to the holders Company Shareholders. The Per Share Amount shall be paid less any required withholding of Company Common Stock. Notwithstanding Taxes, upon the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company terms and in its sole and absolute discretion, (A) from time subject to time extend the Offer if, at the scheduled Expiration Date, any satisfaction or waiver of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all Annex A. The Company agrees that no shares of Company Common Stock validly held by the Company or any of its subsidiaries will be tendered and not withdrawn pursuant to in the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 7 and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreementby January 5, 2001, Parent shall cause Acquisition to commence, and Merger Sub Acquisition shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")) the Offer; and Parent and Acquisition shall use all reasonable efforts to consummate the Offer. Parent shall cause Acquisition to accept for payment, and Acquisition shall accept for payment, Shares and Preferred Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the initial offering period in the Offer at which all conditions to the Offer shall have been satisfied or waived by Acquisition, and thereafter shall accept for payment additional Shares and/or Preferred Shares validly tendered during any subsequent offering period. The obligations obligation of Parent and Merger Sub Acquisition to accept for payment, and pay for, any shares of Company Common Stock for Shares and/or Preferred Shares tendered pursuant to the Offer are shall be subject only to the condition that the sum of the number of Shares validly tendered plus the number of Preferred Shares validly tendered shall be at least 25,562,006 shares (the "Minimum Condition") and the other conditions set forth in Exhibit A. The initial expiration date of Annex A hereto. Acquisition expressly reserves the right to increase the price per Share or price per Preferred Share payable in the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the Minimum Condition. Without the prior written consent of the Company, Merger Sub Acquisition shall not (i) reduce decrease the number of shares of Company Common Stock subject to Per Share Amount or the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change Per Preferred Share Amount or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer Offer, decrease the number of Shares or (vi) otherwise Preferred Shares sought to be purchased in the Offer, impose additional conditions to the Offer, amend any other term of the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding Shares or Preferred Shares, reduce the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of period during which the Offer shall not have been satisfied remain open or waived until such time as such conditions are satisfied or waived waive the Minimum Condition. The Per Share Amount and the Per Preferred Share Amount shall be paid net to the extent permitted by this Agreement; (B) extend the Offer for seller in cash, less any period required by any rulewithholding of taxes, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On upon the terms and subject to such conditions of the conditions to Offer. The Company agrees that no Shares or Preferred Shares held by the Offer that are set forth Company or any of its subsidiaries will be tendered in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Northrop Grumman Corp)
