The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, promptly (but in no event later than five Business Days (as defined below) following the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 5 contracts
Samples: Agreement and Plan of Merger (Imperial Holly Corp), Agreement and Plan of Merger (Imperial Holly Corp), Agreement and Plan of Merger (Imperial Holly Corp)
The Offer. (a) Provided that Subject to this Agreement shall not have having theretofore been terminated in accordance with the provisions of Section 8.01 8.1 hereof, Sub shall, and Parent shall cause Sub to, as promptly (as practicable after, but in no event later than five Business Days (as defined below) following business days from, the date hereof)of this Agreement, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 0.25 per share, of share (the Company ("Company Common Stock") ), of the Company outstanding immediately prior to the consummation of the Offer (the "Shares"), subject only to the conditions set forth in Exhibit A hereto (the "Conditions"), at a price of $20.25 19.50 (the "Offer Price") per shareShare, net to the seller in cash (such pricecash. Subject only to the Conditions, or any such higher price as may be paid in the OfferSub shall, being referred to herein as the "Offer Price"). The obligation of Merger and Parent shall cause Sub to consummate the Offer and to to, accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be all Shares validly tendered pursuant to the Offer; provided, however, that Offer and not withdrawn prior to the Effective Time (expiration date of the Offer as defined below), shares promptly as practicable following the expiration date of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant Offer. Sub expressly reserves the right to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with amend the terms thereof or Section 2.09. Merger Sub will notand conditions of the Offer, PROVIDED that without the prior written consent of the Company, no amendment may be made which (i) decrease decreases the price per Share or change changes the form of the consideration payable in the Offer, (ii) decrease decreases the number of shares of Company Common Stock sought pursuant to the OfferShares sought, or (iii) impose changes any of the Conditions or imposes additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make amends any other change in the terms or conditions term of the Offer which is in either case in any manner adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions Shares (it being understood that extensions of the Offer and as contemplated by this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and Section 1.1(a) are not withdrawn pursuant adverse to the Offer promptly after expiration holders of Shares); and PROVIDED, FURTHER, that the Minimum Condition (as defined in Exhibit A hereto) is for the benefit of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be waived without the Company's consent. The Offer may only be extended except with the prior written consent of the Company or as provided below. If required by law; PROVIDED, HOWEVER, Parent and Sub may extend the conditions set forth in Annex A Offer without the consent of the Company (A) if at the scheduled expiration date of the Offer any of the Conditions shall not have been satisfied or waived or (B) for any period required by any Laws (as hereinafter defined) applicable to the Offer and PROVIDED, FURTHER, that if the Conditions are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Parent and Sub may shall extend the Offer from time to time for up to five (5) business days at a time (or such longer period as shall be approved by the Company) until the earlier of the consummation of the Offer or 30 Business Days sixty (60) calendar days after the date hereof, and provided that such extension shall extend not be required if in the Offer (x) reasonable judgment of Parent or Sub, any Condition is incapable of being satisfied prior to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request expiration of the Company, to a date no later than November 30, 1997 sixty (60) calendar days. Upon the terms hereof and subject to the extent necessary Conditions, Sub will accept for IHK payment and purchase all Shares validly tendered and not withdrawn prior to satisfy the condition set forth in clause (2) expiration of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 5 contracts
Samples: Agreement and Plan of Merger (Nortek Inc), Agreement and Plan of Merger (Snyder Dana R), Agreement and Plan of Merger (Nortek Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) business days following the date public announcement of the execution hereof), Merger Sub Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the"Exchange Act) "), an offer to the Company's stockholders to purchase (all of the "Offer") at least 50.1% of all Company's outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 0.50 per shareshare (the "Shares"), of the Company ("Company Common Stock") at a price of $20.25 19.00 per shareShare, net to the each seller in cash (as such price, or any such higher price as offer may be paid amended in accordance with the Offerterms of this Agreement, being referred to herein as the "Offer PriceOffer"). The obligation of Merger Sub , subject to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub Purchaser will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock Shares sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub Parent or Purchaser in its their sole discretion may waive any of the conditions to the Offer other than the condition (but "Minimum Condition") set forth in clause (1) of the second paragraph of Annex A, which may not waive be waived without the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn)Company's prior written consent, or (v) make any other change in the terms or conditions of the Offer which that is materially adverse to the holders of Shares. Purchaser will, on the shares of Company Common Stock. Merger Sub agrees that, terms and subject to the terms and prior satisfaction or waiver of the conditions of the Offer and this AgreementOffer, it will accept for payment and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; providedprovided that, however, that Merger Sub Purchaser (i) shall not be obligated to accept for payment and pay for in extend the Offer, in Offer if at the aggregate, more than 50.1% scheduled expiration date of the outstanding shares Offer any of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are shall not be satisfied oror waived, provided the extension shall be no longer than reasonably necessary to satisfy such condition, (ii) shall extend the Offer for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the extent permitted by this AgreementOffer, waived by Merger Sub as of any scheduled expiration date, Merger Sub and (iii) may extend the Offer from time up to time until the earlier tenth business day beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the consummation this sentence. The initial expiration date of the Offer or 30 Business Days after shall be January 15, 1999. The Company agrees that no Shares held by the date hereof, and shall extend the Offer (x) Company will be tendered to Purchaser pursuant to the extent necessary Offer; provided, that Shares held beneficially or of record by any plan, program or arrangement sponsored or maintained for the benefit of employees of the Company shall not be deemed to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of be held by the Company, regardless of whether the Company has, directly or indirectly, the power to a date no later than November 30, 1997 vote or control the disposition of such Shares. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for Shares validly tendered on or prior to the extent necessary for IHK expiration of the Offer and not withdrawn shall be subject only to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicablehereto.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Valley Forge Corp), Agreement and Plan of Merger (Brining David R), Agreement and Plan of Merger (Valley Forge Corp)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.01 a failure to satisfy any of the conditions set forth in Annex I hereto, as promptly as practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) business days following the date hereof)public announcement of the terms of this Agreement, Merger Sub a wholly-owned subsidiary of Parent to be organized under the laws of the Republic of Panama ("MERGER SUBSIDIARY") shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "OfferOFFER") at least 50.1% of to purchase all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company outstanding shares of Common Stock ("Company Common Stock"other than shares beneficially owned by Parent) at a price of $20.25 35.62 per shareshare of Common Stock ("COMMON SHARE PRICE"), net to the seller in cash (such price, or any such higher price as may cash. The Offer shall be paid subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, being referred prior to herein as the "Offer Price"). The obligation expiration date of Merger Sub to consummate the Offer and to accept for payment not withdrawn, a number of shares of Common Stock that represents at least a majority of the outstanding shares of Common Stock (other than shares beneficially owned by Parent) (the "MINIMUM CONDITION") and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those the other conditions set forth in Annex A I hereto. The Company agrees that no shares of Company Common Stock held by Merger Subsidiary expressly reserves the Company or right to waive any of the Company Subsidiaries (as defined below) will be tendered pursuant conditions to the Offer and to make any change in the terms or conditions of the Offer; provided, however, provided that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company no change may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will notmade that, without the prior written consent of the Company, (i) decrease or change waives the Minimum Condition, changes the form of consideration to be paid, decreases the consideration payable in the Offer, (ii) decrease price per share of Common Stock or the number of shares of Company Common Stock sought pursuant to in the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the Offer or imposes conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse addition to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions those set forth in Annex A are not satisfied orI. "COMMON STOCK" means the common stock, to the extent permitted by this Agreementpar value $0.01 per share, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (McDermott International Inc), Agreement and Plan of Merger (McDermott J Ray Sa), Agreement and Plan of Merger (McDermott Acquisition Co Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with pursuant to Section 8.01 hereof8.1 of the Agreement, promptly following the public announcement of the terms of the Agreement (but in which public announcement shall occur no event later than five Business Days (as defined below) the first business day following the date hereofexecution of the Agreement), as soon as reasonably practicable, Merger Sub shall, and Parent shall commence cause Merger Sub to amend (within the meaning of Rule 14d-2 under the Exchange Act) an offer the Offer to provide for the purchase (of any and all of the "Offer") at least 50.1% shares of all shares Company Common Stock outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of including the Company ("Company Common Stock"related Rights pursuant to the Rights Agreement) at a price of $20.25 11.00 per share, net to the seller in cash (such price, or any such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation Offer shall be subject solely to the condition that there shall be validly tendered in accordance with the terms of Merger Sub the Offer, prior to consummate the expiration date of the Offer and to accept for payment and to pay for any not withdrawn, a number of shares of Company Common Stock tendered pursuant thereto shall be subject only that, together with the shares of Company Common Stock then owned by Parent and/or Merger Sub, represents at least a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition") and to those the other conditions set forth in Annex A heretoII to the Agreement. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") and the related letter of transmittal containing the terms set forth in this Agreement and the conditions set forth in Annex II. Merger Sub expressly reserves the right, subject to compliance with the Exchange Act, to waive any of the conditions to the Offer and to make any change in the terms of the Offer; provided that (i) the Minimum Condition may be waived only with the prior written consent of the Company agrees and (ii) no change may be made that no changes the form of consideration to be paid, decreases the Offer Price, decreases the number of shares of Company Common Stock held by sought in the Company Offer, adds to or modifies, in a manner adverse to the stockholders of the Company, the conditions to the Offer set forth in Annex II or any other term of the Company Subsidiaries Offer, or (except as defined belowprovided in the next sentence) will be tendered pursuant to changes the expiration date of the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change . Without the form consent of the consideration payable Company, Merger Sub shall have the right to extend the expiration date of the Offer in compliance with the Offer, requirements of the Exchange Act (ii) decrease which extension shall initially be ten business days from and after the number date of announcement of the execution of Merger Agreement to provide for the purchase of all of the outstanding shares of Company Common Stock sought pursuant in accordance with the terms hereof), (i) from time to time thereafter if, at the scheduled or extended expiration date of the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived, (but may not waive ii) for any period required by any rule, regulation, interpretation or position of the condition that not less than 50.1% SEC or the staff thereof applicable to the Offer or any period required by applicable law, or (iii) for up to ten additional business days, if, immediately prior to the scheduled or extended expiration date of the Offer, the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in withdrawn pursuant to the terms or conditions Offer constitute more than 50% but less than 90% of the Offer which is adverse to the holders of the shares of outstanding Company Common Stock. If any of the conditions to the Offer is not satisfied or waived on any scheduled or extended expiration date of the Offer, Merger Sub agrees thatshall, and Parent shall cause Merger Sub to, 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; provided that Merger Sub shall not be required to extend the Offer beyond September 14, 2002. Subject to the foregoing and upon the terms and subject to the terms and conditions of the Offer Offer, Merger Sub shall, and this AgreementParent shall cause it to, it will accept for payment and pay for for, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Mentor Graphics Corp), Agreement and Plan of Merger and Reorganization (Ikos Systems Inc), Agreement and Plan of Merger and Reorganization (Mentor Graphics Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basis) of common stockCommon Stock, par value $.25 .001 per shareshare (the "Shares"), of the Company ("Company Common Stock") at a price of $20.25 2.50 per shareShare, 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 which represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation obligations of Merger Sub the Purchaser to consummate commence the Offer and to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought, change the form of consideration payable in the Offer, or modify or change any of the conditions set forth in Annex A hereto without the written consent of the Company agrees that no shares (such consent to be authorized by the Board of Company Common Stock held by Directors of the Company or a duly authorized committee thereof), provided, however, that if on the initial scheduled expiration date of the Offer, which shall be 20 business days after the date the Offer is commenced, or on any later scheduled expiration date, all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, in its sole discretion, extend the expiration date for a period of not greater than 20 business days, provided further that the expiration date shall not be extended beyond March 31, 1997 without the consent of the Company Subsidiaries (as defined below) will such consent to be tendered pursuant authorized by the Board of Directors of the Company or a duly authorized committee thereof). In addition, the Offer Price may be increased, and the Offer may be extended, but not beyond March 31, 1997, but only to the Offerextent required by law in connection with such increase in each case without the consent of the Company. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the Minimum Condition and the other conditions set forth in Annex A hereto, as the same may be amended in compliance with the terms hereof, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law on any scheduled expiration date; provided, however, that if, immediately prior to the Effective Time (as defined below), shares such expiration date of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly Shares tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more equal less than 50.190% of the outstanding shares of Company Common Stock. The Shares, the Purchaser may extend, but not beyond March 31, 1997, the Offer shall initially provide for a period not to exceed twenty business days, notwithstanding that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the all conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub Offer are satisfied as of any scheduled such expiration date, Merger Sub may extend the Offer from time to time until the earlier date of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (American Studios Inc), Agreement and Plan of Merger (American Studios Inc), Agreement and Plan of Merger (Pca International Inc)
The Offer. (a) Provided that If this Agreement shall has not have been terminated in accordance with Section 8.01 hereofArticle VIII, promptly (as soon as practicable after the public announcement of the execution of this Agreement, but in no any event later than five Business Days (as defined below) following within 15 business days after the date hereof), Merger Sub Buyer shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, . The consummation of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration of the Offer, and not withdrawn, at least a number of Company Shares that, together with the Company Shares beneficially owned by Buyer, represents 80% of the Company Shares outstanding (the “Minimum Condition”); and (ii) the other conditions set forth in Annex A heretoI hereto (together with the Minimum Condition, the “Offer Conditions”). The Company agrees that no shares of Company Common Stock held by Buyer expressly reserves the Company or right to waive any Offer Conditions and to make any change in the terms of the Company Subsidiaries Offer or the Offer Conditions; provided that (as defined belowA) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company Buyer may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, waive the satisfaction of the Minimum Condition, or accept for payment any Company Shares tendered pursuant to the Offer if the Minimum Condition has not been met and (iB) decrease or no change may be made without the prior written consent of the Company that (1) changes the form of the consideration payable in the Offer, (ii2) decrease decreases the Per Share Amount, (3) reduces the maximum number of shares of Company Common Stock sought pursuant Shares to be purchased in the Offer, (iii4) impose additional conditions to extends the OfferOffer other than in accordance with Section 2.01(c), (iv5) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the imposes conditions to the Offer (but may not waive in addition to those set forth in Annex I or which otherwise modifies the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn)conditions set forth in such Annex I, or (v6) make amends any other change in the terms or conditions term of the Offer which is in a manner adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableShares.
Appears in 3 contracts
Samples: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable after the date hereof (but in no event later more than five Business Days ten (as defined below10) following days after the date hereofof this Agreement), Merger Sub shall commence (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2 under the Exchange Act, a tender offer (the “Offer”) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("outstanding shares of Company Common Stock") Stock at a price of per share equal to $20.25 per share, 12.80 net to the seller in cash cash, without interest (such price, amount or any such higher price as may be amount per share of Company Common Stock paid pursuant to the Offer in accordance with this Agreement, the “Offer Price”), subject to any deduction or withholding of Taxes required by Applicable Law, on the terms and subject to the conditions set forth in this Agreement. The consummation of the Offer, being referred to herein as and the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration Offer, shall be subject only to: (i) there being validly tendered and “received” (as defined by Section 251(h)(6) of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for DGCL) in the Offer, in Offer and not properly withdrawn prior to the aggregate, more than 50.1% Expiration Time that number of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it Stock (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) that, together with the number of shares of Company Common Stock then owned by Parent, Merger Sub or any of their respective “affiliates” (as defined by Section 251(h)(6) of the DGCL), represents a majority of the shares of Company Common Stock then outstanding (the “Minimum Condition”), (ii) this Agreement not having been validly terminated in accordance with its terms (the “Termination Condition”) and (iii) the satisfaction, or waiver (to the extent such waiver is commencedpermitted by Applicable Law and this Agreement) by Parent or Merger Sub, of the other conditions and may not be extended except as provided below. If the conditions requirements set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer Exhibit B (x) to the extent necessary to comply together with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, Minimum Condition and the rules and regulations thereunder (Termination Condition, the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable“Offer Conditions”).
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Essendant Inc), Agreement and Plan of Merger (Staples Inc)
The Offer. (a) Provided that this Agreement So long as none of the events set forth in paragraphs (a) through (g) in Exhibit A attached hereto shall not have been terminated in accordance with Section 8.01 hereofoccurred and be continuing, promptly (Newco shall, as soon as practicable but in no event later than five Business Days (as defined belowin Section 1.3) following from the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer Offer to purchase (all of the "Offer") at least 50.1% outstanding shares of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, Common Stock of the Company ("Company Common Stock") at a price of $20.25 15.50 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer PricePrice Per Share"). The obligation ) and subject to (i) at least that number of Merger Sub shares of Common Stock equivalent to consummate a majority of the total issued and outstanding shares of Common Stock on the date such shares are purchased pursuant to the Offer (the "Minimum Shares") being validly tendered and not withdrawn prior to accept for payment the expiration of the Offer (the "Minimum Condition") and to pay for any shares (ii) the satisfaction of Company Common Stock tendered pursuant thereto shall be subject only to those the other conditions set forth in Annex Exhibit A attached hereto, any of which conditions may be waived by Newco in its sole discretion, Newco shall not withdraw the Offer and shall at the earliest time following the expiration of the Offer and subject to the terms of the Offer accept for payment, purchase and pay for all shares of Common Stock duly tendered and not withdrawn. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will Offer shall be tendered made pursuant to the Offer; provided, however, that prior an Offer to the Effective Time (as defined below), shares Purchase and related Letter of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant Transmittal in forms reasonably satisfactory to the Company Stock Option Plan (as such term is defined and containing terms set forth in Section 2.09) this Agreement, the Minimum Condition and the other conditions set forth in accordance with the Exhibit A attached hereto, which terms thereof or Section 2.09. Merger Sub will not, and conditions shall not be amended without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 2 contracts
Samples: 6 Agreement and Plan of Merger (Albertsons Inc /De/), 6 Agreement and Plan of Merger (Buttrey Food & Drug Stores Co)
The Offer. (a) Provided Subject to the provisions of this Agreement, as promptly as practicable after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall not have been terminated amend the Offer to reflect this Agreement and amend the conditions to the Offer in accordance with Section 8.01 hereofherewith. The expiration date of the Offer shall be the tenth day, promptly other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (but in no event later than five Business Days (as defined below) following each a "BUSINESS DAY"), from and after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under Offer is amended to provide for the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, dated August 8, 2002 and contained in the Schedule TO, and a related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of Sub to accept for payment, and pay for, any Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto(the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Parent and Sub in their reasonable discretion, except that Parent and Sub shall not waive the Minimum Condition without the consent of the Company) and to the terms and conditions of this Agreement. The Company agrees that no Parent and Sub expressly reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Parent and Sub shall not (i) reduce the number of shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant subject to the Offer; provided, however, that prior (ii) reduce the Offer Price; (iii) amend or add to the Effective Time Offer Conditions; (iv) except as defined below)provided in the next sentence, shares extend the Offer; (v) change the form of Company Common Stock held by or reduce the Company may be allocated, issued, delivered consideration payable in the Offer; or transferred pursuant (vi) amend any other term of the Offer in any manner adverse to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with Stockholders. Notwithstanding the terms thereof or Section 2.09. Merger foregoing, Parent and Sub will notmay, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; (ii) decrease extend the number Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "COMMISSION") applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence; or (iv) extend the Offer for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock sought pursuant validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, (iii) impose additional conditions to Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the Offer, (iv) change the conditions to the Offer, except that Merger date on which Sub in its sole discretion may waive any of the conditions first accepts shares for payment pursuant to the Offer (but may not waive the condition that not less than 50.1% such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawnExchange Act, the "ACCEPTANCE DATE"), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Omnicare Inc), Agreement and Plan of Merger (Omnicare Inc)
The Offer. (a) Provided that this Agreement nothing shall not have occurred and be continuing that, had the Offer been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.01 hereofAnnex I, as promptly as practicable after the date hereof and in any event within ten (but in no event later than five 10) Business Days (as defined below) following after the date hereof), Merger Sub Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the Exchange Act0000 Xxx) an offer the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the "condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer") , prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least 50.1% a majority of all shares the total number of Shares outstanding (on a fully diluted basis, calculated in accordance with Section 3.5(b) of common stock(the “Minimum Condition”), par value $.25 per share, of the Company and ("Company Common Stock"2) at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those other conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by I. Merger Subsidiary expressly reserves the Company or right to waive any of the Company Subsidiaries (as defined below) will be tendered pursuant conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the consideration payable 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth (ii20th) decrease business day after commencement of the number Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of shares the Offer is extended pursuant to and in accordance with the terms of Company Common Stock sought this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary 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, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (iii“Subsequent Offering Period”) impose additional in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions to of the Offer, Merger Subsidiary shall, and Parent shall cause it to (iv) change the conditions including by providing or causing to the Offer, except that be provided to Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding Subsidiary on a fully diluted timely basis shall have been validly tendered and not withdrawnthe necessary funds), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for for, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock Shares (i) validly tendered and not withdrawn pursuant to the Offer promptly after expiration of (the Offer; provided, however, that Merger Sub shall not be obligated to accept time at which Shares are first accepted for payment and pay for in under the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act"“Acceptance Time”) and (yii) upon validly tendered in the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableSubsequent Offering Period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ixia), Agreement and Plan of Merger (Catapult Communications Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofArticle VII and none of the events set forth in Annex A hereto ------- shall have occurred or be existing, Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after the date hereof (but in no event later than five Business Days (as defined below) following the date hereoffifth business day after the public announcement of the terms of this Agreement), Merger Sub shall commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act) ")), an offer to purchase (the "Offer") at least 50.1% of ------------ ----- to purchase all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("outstanding shares of Company Common Stock"Stock (and associated Rights) at a price of 38.50 United States Dollars ($20.25 38.50) per shareshare and associated Right (the "Offer Price"), net to the seller in cash 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 this Agreement. The initial expiration date of the Offer shall be the twentieth business day from and after the date the Offer is commenced (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer PriceInitial Expiration Date"). The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment payment, ----------------------- purchase and to pay for any shares of Company Common Stock (and associated Rights) tendered pursuant thereto to the Offer shall be subject subject, except as provided in Section 1.1(b), only to those conditions set forth in Annex A hereto. The the satisfaction of (i) the condition that a number of shares of Company agrees that no Common Stock representing not less than fifty-one percent (51%) of the total issued and outstanding shares of Company Common Stock on a diluted basis (after giving effect to the conversion 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 the Company its Subsidiaries (as defined below)) will be tendered on the date such shares are purchased pursuant to the OfferOffer have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and (ii) the ----------------- other conditions set forth in Annex A hereto; provided, however, that prior Purchaser ------- -------- ------- expressly reserves the right to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive other than the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered Minimum Condition) and not withdrawn), or (v) to make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees thatin its sole discretion, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableSection 1.1(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc), Agreement and Plan of Merger (Novartis Inc)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.01 a failure to satisfy any of the conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) business days following the date hereof)public announcement of the terms of this Agreement, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "OfferOFFER") at least 50.1% to purchase all of all the outstanding shares outstanding (on a fully diluted basisthe "SHARES") of common stock, $0.01 par value $.25 per share, of the Company (the "Company Common StockCOMMON STOCK") at a price of $20.25 4.45 per shareShare, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")cash. The obligation Offer shall be subject to the condition that a number of Merger Sub Shares which, together with the Shares then owned by Buyer, represents at least a majority of the Shares outstanding on a fully diluted basis shall be validly tendered in accordance with the terms of the Offer prior to consummate the expiration date of the Offer and to accept for payment not withdrawn (the "MINIMUM CONDITION") and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those the other conditions set forth in Annex A I hereto. The Company agrees that no shares of Company Common Stock held by Merger Subsidiary expressly reserves the Company right to waive the Minimum Condition or any of the Company Subsidiaries (as defined below) will be tendered pursuant other conditions to the Offer and to make any change in the terms or conditions of the Offer; provided, however, provided that prior no change may be made which changes the form of consideration to be paid or decreases the price per Share or the number of Shares sought in the Offer or which imposes conditions to the Effective Time (as defined below)Offer in addition to those set forth in Annex I. Notwithstanding the foregoing, shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will notSubsidiary may, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in extend the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive if at any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), scheduled or (v) make any other change in the terms or conditions extended expiration date of the Offer which is adverse to the holders any of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are I hereto or the Minimum Condition shall not be satisfied oror waived, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may (ii) extend the Offer from time to time until the earlier for any period required by any rule, regulation, interpretation or position of the consummation Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (iii) extend the Offer on one or more occasions, if on such expiration date there shall not have been validly tendered in accordance with the term of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request not withdrawn at least a majority of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableoutstanding Shares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Oscar Acquisition Corp), Agreement and Plan of Merger (Oscar Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act) an offer to purchase Act of 1934, as amended (the "OfferEXCHANGE ACT")) a tender offer (the "OFFER") at least 50.1% for any and all of all the outstanding shares outstanding (on a fully diluted basis) of common stockCommon Stock, par value $.25 .03 per shareshare (the "SHARES"), of the Company ("Company Common Stock") at a price of $20.25 U.S.$45.00 per shareShare, net to the seller in cash (such price, or any such higher other price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE") and, subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which represents at least a majority of the Shares outstanding on a fully diluted basis (the "MINIMUM CONDITION") and to the other conditions set forth in Annex A hereto, shall consummate the Offer Pricein accordance with its terms ("FULLY DILUTED BASIS" means issued and outstanding Shares and Shares subject to issuance under Company Option Plans (as defined in Section 2.4) and Shares 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). The obligation obligations of Merger Sub the Purchaser to consummate commence the Offer and to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not properly withdrawn shall be subject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company or any of the Company Subsidiaries (as defined below"OFFER TO PURCHASE") will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with containing the terms thereof set forth in this Agreement, the Minimum Condition and the conditions set forth in Annex A hereto. The Purchaser shall not amend or Section 2.09. Merger Sub will not, without waive the prior written consent of Minimum Condition and shall not decrease the Company, (i) decrease Offer Price or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock Shares sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make amend any other change in the terms or conditions condition of the Offer which is in any manner adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, Shares (other than with respect to insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1) without the written consent of the Company (such consent to be authorized by the Board of Directors of the Company (the "COMPANY BOARD") or a duly authorized committee thereof); PROVIDED, HOWEVER, that if on the initial scheduled expiration date of the Offer, which shall be 20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date; PROVIDED, HOWEVER, that the Purchaser shall, if the Company, Parent and the Purchaser have not obtained the approvals of any Governmental Entity (as defined in Section 3.4) as required under Section 5.4, extend the expiration date for a period of the lesser of (i) 2 business days after the date that all such approvals have been obtained and (ii) 35 days after such initial scheduled expiration date. In addition, the Offer Price may be increased, and the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this AgreementOffer, it will accept for payment and pay for all shares Shares validly tendered as soon as it is permitted to do so under applicable law; PROVIDED, HOWEVER, that if, immediately prior to the initial expiration date of Company Common Stock the Offer (as it may be extended), the Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more equal less than 50.190% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedShares, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Purchaser may extend the Offer from time for a period not to time until exceed 10 business days, notwithstanding that all conditions to the earlier Offer are satisfied as of such initial expiration date of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Extendicare Inc /Can/), Agreement and Plan of Merger (Arbor Health Care Co /De/)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.01 hereofAnnex I, as promptly (but in no event later than five Business Days (as defined below) following practicable after the date hereof), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") Offer at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The Parent’s and Merger Sub’s obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto in the Offer shall be subject only to those the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock subject to a Sale and Support Agreement (the “Committed Shares”), represents at least two-thirds (or such lesser number as may be determined by Parent and Merger Sub) of all shares of Company Common Stock then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex A hereto. The 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 unless otherwise provided by this Agreement, the Sale and Support Agreement or previously approved by the Company agrees in writing, (i) the Minimum Condition may not be waived below that no number of shares of Company Common Stock held by that, together with the Company or any Committed Shares, represents a majority of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), all shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offerthen outstanding, (ii) decrease 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 sought pursuant to in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the Offer in any manner materially adverse to the holders of shares of Company Common Stock and (iii) impose additional the Offer may not be extended except as set forth in this Section 1.1(a). Subject to the terms and conditions to of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Merger Sub shall extend the Offer (1) if, at the scheduled or extended expiration date of the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer shall not have been satisfied or waived, from time to time, until the earliest to occur of (but may x) the satisfaction or waiver of such conditions, (y) the reasonable determination by Parent that any such condition to the Offer is not waive capable of being satisfied on or prior to the Walk-Away Date, provided that the inability to satisfy such condition that does not less than 50.1% result from any breach of any provision of this Agreement by Parent or Merger Sub, and (z) the Walk-Away Date, and (2) for any period required by any rule, regulation, interpretation or position of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), SEC or (v) make the staff thereof applicable to the Offer or any other change in the terms or conditions period required by applicable Law. Following expiration of the Offer which is adverse to the holders Offer, Merger Sub may, in its sole discretion, provide one or more subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the shares of Company Common Stock. Merger Sub agrees thatExchange Act, subject to the terms and conditions if, as of the Offer and this Agreementcommencement of each such period, it will accept for payment and pay for all the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration and any prior Subsequent Offering Period, together with the Committed Shares, is less than that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of shareholders of the Company, in accordance with Section 5.16 of TBCA. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer; provided, however, that Merger Sub shall, and Parent shall not be obligated to cause Merger Sub to, accept for payment and pay for in the Offerfor, in the aggregateas promptly as practicable, more than 50.1% of the outstanding all shares of Company Common StockStock (A) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, Price payable in respect of each share of Company Common Stock validly tendered and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, withdrawn pursuant to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and validly tendered in any Subsequent Offering Period shall extend the Offer (x) be paid net to the extent necessary holder thereof in cash, subject to comply with the waiting period requirements (including reduction for any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableapplicable withholding Taxes.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Acr Group Inc), Agreement and Plan of Merger (Watsco Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofArticle VII, promptly then (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five two Business Days (as defined below) following after the date hereof)of such announcement, Merger Sub shall commence amend (within the meaning of Rule 14d-2 under 14d-2(a) of the Exchange Act) an offer the Offer to provide for the purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("outstanding shares of Company Common Stock") Stock at the Price Per Share subject to reduction only for any applicable federal withholding taxes. The initial expiration date of the Offer shall be the tenth Business Day from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms hereof. The Offer shall be made pursuant to a price Supplemental Offer to Purchase and related Letter of $20.25 per share, net Transmittal in form reasonably satisfactory to the seller Company and containing terms and conditions set forth in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")this Agreement. The obligation of Merger Sub to consummate the Offer and to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those (i) at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "MINIMUM SHARES") being 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, any of which conditions may be waived by Merger Sub in its sole discretion. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to Merger Sub pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vlsi Technology Inc), Agreement and Plan of Merger (Vlsi Technology Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof7.1, as promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date hereofpublic announcement of the execution of this Agreement), Merger Sub Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase (the "Offer") at least 50.1% of to purchase for cash any and all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("issued and outstanding Company Common Stock") Stock at a price of $20.25 22.75 per shareShare, 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 the conditions set forth in Annex A hereto and subject to Section 2.2(e). The obligation Company shall not tender Shares held by it or by any of Merger Sub its subsidiaries pursuant to the Offer. The initial expiration date to be set forth in the Offer shall be August 12, 1999 (as extended in accordance herewith, the "Expiration Date"), subject to extension as provided below. Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer (except that the Minimum Condition (as hereinafter defined) may not be amended or waived below 51% of the total issued and outstanding shares (other than treasury shares) of Company Common Stock), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of Purchaser to consummate the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered and not 6 withdrawn prior to the expiration of the Offer, not less than 18,400,000 shares of Company Common Stock tendered pursuant thereto shall be subject only to those (the "Minimum Condition"), which shares represent 68.3% of the total issued and outstanding shares (other than treasury shares) of Company Common Stock on the date hereof, and the other conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Red Roof Inns Inc), Agreement and Plan (Accor Sa /Fi)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly (as practicable but in no event later than five Business Days ten (as defined below10) following business days after the date hereof)of this Agreement, Merger Sub shall, and Parent shall cause Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, applicable rules and regulations of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")SEC. The obligation of Merger Sub to, and of Parent to consummate the Offer and to cause Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex Exhibit A hereto. The Company agrees that no shares of Company Common Stock held by the Company or (any of which may be waived by Sub in its sole discretion, except as otherwise provided herein). Sub expressly reserves the Company Subsidiaries (as defined below) will be tendered pursuant right to modify the terms of the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will notexcept that, without the prior written consent of the Company, Sub shall not (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease reduce the number of shares of Company Common Stock sought subject to the Offer or reduce or waive the Minimum Tender Condition, (ii) reduce the consideration per share of Company Common Stock to be paid pursuant to the OfferOffer below the Offer Price, (iii) impose additional conditions modify or add to the Offerconditions set forth in Exhibit A, (iv) except as provided in the next sentence, extend the Offer or (v) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer for up to forty-five (45) days, if at the initial scheduled expiration date of the Offer (which shall be twenty (20) business days following the commencement of the Offer) any of the conditions to Sub's obligation to purchase shares of Company Common Stock are not satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer, except that Merger Sub in its sole discretion may waive any if all of the conditions to the Offer (are satisfied or waived but may not waive the condition that not less than 50.1% number of the Company Common Stock outstanding on a fully diluted basis shall have been Shares validly tendered and not withdrawnwithdrawn is less than ninety percent (90%) of the then outstanding number of shares on a Fully Diluted Basis, for an aggregate period not to exceed twenty (20) business days (for all such extensions); provided, that Sub shall immediately accept and promptly pay for all Company Common Stock tendered prior to the date of an extension pursuant to clause (B) and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension, (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, and (vD) make any other change extend the Offer in increments of not more than twenty (20) business days, if at the terms or conditions initial scheduled expiration of the Offer which is adverse (or any extension thereof) the waiting period (and any extension thereof) applicable to the holders any of the shares Transactions under the HSR Act shall not have been terminated or shall not have expired or any consents, approvals and filings under any foreign antitrust law, the absence of Company Common Stockwhich would prohibit the consummation of the Merger, shall not have been obtained or made. Merger Sub agrees that, On the terms and subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and Sub shall pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after the expiration of the Offer; providedOffer and, however, that Merger Sub shall not be obligated with respect to accept for payment and pay for in any extension of the Offer, in the aggregate, more than 50.1% of the outstanding as soon as practicable after shares of Company Common StockStock are validly tendered. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedSub may, and may not be extended except as provided below. If at any time, transfer or assign to one or more Subsidiaries of Parent the conditions set forth in Annex A are not satisfied or, right to purchase all or any portion of the shares of Company Common Stock tendered pursuant to the extent permitted by this AgreementOffer, waived by Merger but any such transfer or assignment shall not relieve Sub as or Parent of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of their respective obligations under the Offer or 30 Business Days after prejudice the date hereof, rights of tendering stockholders to receive payment for shares of Company Common Stock validly tendered and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary accepted for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicablepayment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Foilmark Inc), Agreement and Plan of Merger (Illinois Tool Works Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofArticle IX, promptly (but in no event later than five Business Days (as defined below) following the date hereof)Parent shall, Merger or shall cause Offer Sub shall to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% acquire all outstanding shares of all shares outstanding (on a fully diluted basis) of common stockSRH Common Stock not owned, par value $.25 per sharedirectly or indirectly, of by the Company ("Company Common Stock") at a price of $20.25 72.00 per shareshare of SRH Common Stock. Parent shall, net and shall cause Offer Sub, to use its reasonable efforts to cause the seller in cash (such priceOffer to be consummated at, or any such higher price as may be paid in soon as possible following, the Offer, being referred to herein as the "Offer Price")Effective Time. The obligation of Merger Parent or Offer Sub to consummate the Offer and to accept for payment and to pay for any shares of Company SRH Common Stock tendered pursuant thereto shall be subject only to those the conditions set forth in Annex A heretoArticle VIII to this Agreement and to the prior or concurrent consummation of the Merger (collectively, the "Offer Conditions"), which are for the sole benefit of Parent and Offer Sub and may be asserted by Parent or Offer Sub regardless of the circumstances giving rise to any such condition, or waived by Parent or Offer Sub in whole or in part at any time and from time to time in its sole discretion; provided, that in no event shall Parent or Offer Sub purchase any shares of SRH Common Stock pursuant to the Offer if the Merger shall not have occurred or concurrently occur. The Company agrees and SRH agree that no shares of Company SRH Common Stock held by the Company Company, SRH or any of the Company their respective Subsidiaries (as defined below) will be tendered to Parent or Offer Sub pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Parent and Offer Sub will not, without the prior written consent of the CompanySRH, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company SRH Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) Offer or change the conditions to the OfferOffer Conditions (provided, except that Merger Sub Parent or Investor in its sole discretion may waive any of the such conditions to the Offer (but may not waive the condition that not and, in connection therewith, substitute a less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), restrictive condition) or (v) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of the shares of Company SRH Common Stock. Merger Sub agrees thatNotwithstanding the foregoing, subject Parent and SRH may, without the consent of the Company or SRH, (x) extend the Offer, if at the scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived, until such time as all conditions are satisfied or waived, (xi) extend the Offer for any period required by any statute, rule, regulation, interpretation or position of any Governmental Authority applicable to the Offer, and (xii) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (x) and (xi) of this sentence. Subject to the Offer Conditions and the terms and conditions of the Offer and this Agreement, it will Parent shall, and Parent shall cause Offer Sub to, accept for payment payment, and pay for for, all shares of Company SRH Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after the expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 2 contracts
Samples: Transaction Agreement and Plan of Merger (HSBC Holdings PLC), Transaction Agreement and Plan of Merger (Republic New York Corp)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofand that none of the conditions to the offer set forth in Exhibit A hereto shall have occurred or be existing, Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable (but in no event later than five Business Days (as defined below) ten business days following the date hereof), Merger Sub shall public announcement of the terms of this Agreement) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase (the "Offer") at least 50.1% of all outstanding shares outstanding (on a fully diluted basis) of common stockstock of the Company, par value $.25 0.50 per shareshare (the "Shares"), of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price") of $7.00 per Share, net to the seller in cash (the "Offer"). The obligation of Merger Sub Purchaser to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock Shares tendered pursuant thereto shall be subject to only to those conditions set forth in Annex Exhibit A heretohereto (the "Offer Conditions"), any of which (other than the Minimum Tender Condition) may be waived by Purchaser in its sole discretion. The Company agrees that no shares of Company Common Stock held by the Company or any initial expiration date of the Company Subsidiaries Offer shall be the twentieth business day following the commencement of the Offer (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) determined in accordance with the Exchange Act). Purchaser expressly reserves the right to modify the terms thereof or Section 2.09. Merger Sub will notof the Offer, except that, without the prior written consent of the Company, Purchaser shall not (iA) decrease or change the form of the consideration payable in the Offer, (iiB) decrease the number of shares of Company Common Stock Shares sought pursuant to the Offer, (iiiC) impose additional conditions to the Offer, (ivD) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (vE) make any other change in the terms or conditions of the Offer which that is materially adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableShares.
Appears in 2 contracts
Samples: Agreement of Merger (Marine Transport Corp), Agreement of Merger (Crowley Maritime Corp)
The Offer. (a) Provided that this The Merger Agreement shall not have been terminated in accordance with Section 8.01 hereofprovides that, promptly (but in no event later than five Business Days (as defined below) following the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, satisfaction or waiver of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse set forth in Section 15 of this Offer to the holders Purchase entitled "Certain Conditions of the shares of Company Common Stock. Merger Offer," Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for purchase all shares of Company Common Stock validly tendered and not withdrawn withdrawn. Parent and Sub have agreed not to, without the prior consent of the Company (a) reduce the number of shares of Company Common Stock subject to the Offer or reduce or waive the Minimum Tender Condition, (b) reduce the consideration per share of Company Common Stock to be paid pursuant to the Offer below the Offer Price, (c) modify or add to the conditions of the Offer, (d) except for the specific instances described below, extend the Offer, or (e) change the form of consideration payable in the Offer. Sub may, however, without the consent of the Company, extend the Offer (a) for up to forty-five (45) days, if at the initial expiration date of the Offer any of the conditions to the Offer are not satisfied or waived, (b) for an aggregate of twenty (20) business days if all of the conditions to the Offer have been satisfied but less than ninety percent (90%) of the then outstanding number of shares have been validly tendered and not withdrawn, provided that Sub immediately accepts and promptly after pays for all shares tendered prior to the date of the extension, (c) for any period required by any rule, regulation, interpretation or position of the SEC, or (d) in increments of not more than twenty business days, if at the expiration of the Offer; provided, howeveror any extension thereof, that the Merger Sub shall cannot be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with consummated because the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicablenot have terminated or any foreign antitrust law approvals shall not have been obtained.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.01 a failure to satisfy any of the conditions set forth in Annex I hereto, Merger Sub- sidiary shall, as promptly as practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) business days following the date hereof)public announcement of the terms of this Agreement, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) com- mence an offer to purchase (the "Offer") at least 50.1% to purchase all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 .01 per shareshare (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company ("Company Common Stock") at a price of $20.25 30.50 per shareShare (including such associated Rights), net to the seller in cash cash. 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 and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such price, or any such higher price as may be paid in the Offer, total number of outstanding Shares being hereinafter referred to herein as the "Offer PriceFully Diluted Shares"). The obligation of Merger Sub to consummate ) (the Offer "Minimum Condition") and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those the other conditions set forth in Annex A I hereto. The Company agrees that no shares of Company Common Stock held by Parent and Merger Subsidiary expressly reserve the Company or any of right to waive the Company Subsidiaries (as defined below) will be tendered pursuant conditions to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will notpro- vided that, without the prior written consent of the Company, (i) decrease or no change may be made which changes the form of consideration to be paid, decreases the consideration payable price per Share or the number of Shares sought in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional imposes conditions to the OfferOffer in addi- tion to those set forth in Annex I, changes or waives the Mini- mum Condition, extends the Offer (ivexcept as set forth in the following sentence), or makes any other change to any condition to the Offer set forth in Annex I which is adverse to the hold- ers of Shares. Subject to the terms of the Offer in this Agre- ement and the satisfaction (or waiver to the extent permitted by this Agreement) change of the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis Sub- sidiary shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after expiration of the Offeracceptance; provided, however, provided that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Subsidiary may extend the Offer from time to time until if, at the earlier of the consummation scheduled expiration date of the Offer or 30 Business Days after any extension thereof any of the date hereofconditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or waived, and shall Merger Subsidiary may extend the Offer for a further period of time of not more than 20 business days to meet the objective (x) which is not a condition to the extent necessary to comply Offer) that there be validly tendered, in accordance with the waiting period requirements terms of the Offer, prior to the expiration date of the Offer (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act"so extended) and (y) upon the request not with- drawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the CompanyFully Diluted Shares. Subject to Section 9.1, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy if the condition set forth in clause (2ii) of the first paragraph of Annex A. The Company I is not satisfied as of the date the Offer would otherwise have expired, Merger Subsidiary shall extend the Offer until the earlier of (i) the date that is 30 days after the first sched- uled expiration date and Merger Sub shall use commercially reasonable efforts to satisfy (ii) the conditions date the condition set forth in clause (ii) of the first paragraph of Annex A as soon as practicableI is satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cheyenne Software Inc)
The Offer. (a) Provided that this The Merger Agreement shall not have been terminated in accordance with Section 8.01 hereofprovides that, upon the terms and subject to the conditions thereof, Purchaser will commence the Offer as promptly (as reasonably practicable, but in no event later than five Business Days business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and certain other conditions that are described in "The Tender Offer - 9. Conditions to the Offer." Purchaser has agreed that no change in the Offer may be made which waives the Minimum Condition, and no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration, which reduces the maximum number of Shares to be purchased in the Offer, which makes changes to the Offer which are otherwise adverse to the Company or the Public Stockholders or which imposes conditions to the Offer in addition to those set forth in "The Tender Offer - 9. Conditions to the Offer" hereof without the prior consent of the Company. The Merger. The Merger Agreement provides that, upon the terms and subject to the conditions thereof, and in accordance with Delaware Law, at the Effective Time, Purchaser shall 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 of the Merger. At the Effective Time, by virtue of the Merger and without any action on the part of Purchaser, the Company or holders of any Shares, (as defined belowa) following each Share issued and outstanding immediately prior to the date hereof)Effective Time (other than any Shares held in the treasury of the Company, or owned by Purchaser, any Affiliate of Purchaser or any direct or indirect subsidiary of the Company and any Shares which are held by stockholders who have not voted in favor of the Merger Sub or consented thereto in writing and who shall commence (within have demanded properly in writing appraisal for such Shares in accordance with Delaware Law) shall be cancelled and converted automatically into the meaning of Rule 14d-2 under right to receive $7.875 per Share in cash or such higher price paid in the Exchange Act) an offer to purchase Offer (the "OfferMerger Consideration") at least 50.1% payable, after reduction for any required Tax withholding, without interest, to the holder of all shares outstanding such Share, upon surrender, in the manner provided in the Letter of Transmittal, of the certificate that formerly evidenced such Share; (on a fully diluted basisb) each Share held in the treasury of common stockthe Company and each Share owned by Purchaser, any Affiliate of Purchaser or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time shall be canceled without any conversion thereof and no payment or distribution will be made with respect thereto; and (c) each share of Class A Common Stock, par value $.25 .01 per share, of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Class A Common Stock, par value $.50 per share, of the Company ("Company Surviving Corporation, and each share of Class B Common Stock") at a price of , par value $20.25 .01 per share, net of Purchaser issued and outstanding immediately prior to the seller Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Class B Common Stock, par value $.50 per share, of the Surviving Corporation. The Merger Agreement provides that the directors of Purchaser immediately prior to the Effective Time will be the initial directors of the Surviving Corporation and that the officers of the Company immediately prior to the Effective Time will be the initial officers of the Surviving Corporation, in cash each case until their respective successors are duly elected or appointed and qualified. The Merger Agreement provides that, at the Effective Time, the Certificate of Incorporation of the Company restated in the form attached to the Merger Agreement will be the Certificate of Incorporation of the Surviving Corporation. The Merger Agreement also provides that the By-laws of the Company, as in effect immediately prior to the Effective Time, will be the By-laws of the Surviving Corporation. The Merger Agreement provides that each Company Stock Option outstanding at the Effective Time under the Company Stock Option Plan shall be canceled by the Company immediately prior to the Effective Time, and each holder of a canceled Company Stock Option shall be entitled to receive at the Effective Time or as soon as practicable thereafter from the Company in consideration for the cancellation of such Company Stock Option an amount equal to the product of (i) the number of Shares previously subject to such priceCompany Stock Option, or any and (ii) the excess, if any, of the Merger Consideration over the exercise price per share of Shares previously subject to such higher price as may Company Stock Option, which shall be paid in cash, after reduction for applicable tax withholding. The Merger Agreement provides that notwithstanding any provision of the OfferMerger Agreement to the contrary, being referred Shares that are outstanding immediately prior to herein the Effective Time and which are held by stockholders who shall have not voted in favor of the Merger or consented thereto in writing and who shall have demanded properly in writing appraisal for such Shares in accordance with Section 262 of Delaware Law shall not be converted into or represent the right to receive the Merger Consideration. Such stockholders shall be entitled to receive payment of the appraised value of such Shares held by them in accordance with the provisions of such Section 262, except that all Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such Shares under such Section 262 shall thereupon be deemed to have been converted into and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without any interest thereon, upon surrender, in the manner provided in the Merger Agreement, of the certificate or certificates that formerly evidenced such Shares. Agreements of Purchaser and the Company. Pursuant to the Merger Agreement, the Company shall, if required by applicable law in order to consummate the Merger, duly call, give notice of, convene and hold an annual or special meeting of its stockholders as soon as practicable following consummation of the Offer for the purpose of considering and taking action on the Merger Agreement and the transactions contemplated thereby (the "Offer PriceStockholders' Meeting"). The obligation Merger Agreement also provides that subject to its fiduciary duties under applicable law as advised by independent counsel, if the Minimum Condition shall not have been satisfied and such condition shall have been waived by Purchaser, at the Stockholders' Meeting Purchaser will cause all Shares then owned by it and the Shares under its control to be voted in favor of the Merger. The Merger Sub Agreement provides that, notwithstanding the preceding paragraph, in the event that Purchaser shall acquire at least 90 percent of the then outstanding Shares of each class, subject to consummate certain conditions, Purchaser and the Offer Company agree to take all necessary and appropriate action to accept for payment cause the Merger to become effective in accordance with Section 263 of Delaware Law as soon as reasonably practicable after such acquisition, without a meeting of the Company's stockholders. The Merger Agreement provides that the Company will, if required by applicable law, as soon as practicable following consummation of the Offer, file an information or proxy statement (the "Proxy Statement") with the under the Exchange Act, and use best efforts to pay for have the Proxy Statement cleared by the Commission. Purchaser and the Company will cooperate with each other in the preparation of the Proxy Statement, and the Company will notify Purchaser of the receipt of any shares comments of Company Common Stock tendered pursuant thereto the Commission with respect to the Proxy Statement. The Merger Agreement further provides that the Certificate of Incorporation of the Surviving Corporation shall be subject only contain provisions no less favorable with respect to those conditions indemnification than are set forth in Annex A heretoArticle Eighth of the Certificate of Incorporation of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of ten years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by law. The Merger Agreement provides that the Company agrees shall, to the fullest extent permitted under applicable law and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of ten years after the date hereof. The Merger Agreement provides that no shares of Company Common Stock held the Surviving Corporation shall use its best efforts to maintain in effect for six years from the Effective Time, if available, the current directors' and officers' liability insurance policies maintained by the Company or any (provided that the Surviving Corporation may substitute therefor policies of at least the Company Subsidiaries (as defined belowsame coverage containing terms and conditions which are not materially less favorable) will be tendered pursuant with respect to matters occurring prior to the OfferEffective Time; provided, however, that prior in no event shall the Surviving Corporation be required to expend pursuant to this provision: for the period beginning at the Effective Time and ending three years thereafter, more than an amount per year equal to 300% of current annual premiums (as defined below), shares of Company Common Stock held the "Current Annual Premiums") paid by the Company may be allocatedfor such insurance, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, and (ii) decrease for the number of shares of Company Common Stock sought pursuant to period beginning on the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any third anniversary of the conditions Effective Time and ending three years thereafter, more than an amount per year equal to the Offer (but may not waive the condition that not less than 50.1200% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableCurrent Annual Premiums.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basis) of common stockCommon Stock, par value $.25 .02 per shareshare (the "Shares"), of the Company ("Company Common Stock") at a price of $20.25 68.00 per shareShare, net to the seller in cash (such price, or any such higher other 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 which represents more than two-thirds of the Shares outstanding on a fully diluted basis (without giving effect to any Shares issuable pursuant to the Stock Option Agreement) (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation obligations of Merger Sub the Purchaser to consummate commence the Offer and to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject sub ject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A here to. The Purchaser shall not decrease the Offer Price or decrease the number of Shares sought, or amend any other condition of the Offer in any manner adverse to the holders of the Shares (other than with respect to insignificant changes or amendments and subject to the last sentence of this Section 1.1(a)) without the written consent of the Company agrees that no shares (such consent to be authorized by the Board of Company Common Stock held by Directors of the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offera duly authorized committee thereof); provided, however, that prior to if on the Effective Time (as defined below)initial scheduled expiration date of the Offer which shall be January 5, shares of Company Common Stock held by the Company 1998 and which may not be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, accelerated without the Company's prior written consent of the Companyapproval, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the all conditions to the Offer (but may shall not waive have been satisfied or waived, the condition that Purchaser may, from time to time, in its sole discretion, extend the expiration date for one or more periods not less than 50.1% to exceed an aggregate of 40 business days. The Pur chaser shall, on the terms and subject to the prior satisfaction or waiver of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees thatOffer, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares Shares tendered as soon as it is legally permitted to do so under applicable law as long as such date is on or after January 5, 1998; provided, however, that if, immediately prior to the initial expiration date of Company Common Stock validly the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more equal less than 50.190% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedShares, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Purchaser may extend the Offer from time for one or more periods not to time until exceed an aggregate of thirty business days, notwithstanding that all conditions to the earlier Offer are satisfied as of such expiration date of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.01 a failure to satisfy any of the conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) business days following the date hereof)public announcement of the terms of this Agreement, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% to purchase all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 .01 per shareshare (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company ("Company Common Stock") at a price of $20.25 30.50 per shareShare (including such associated Rights), net to the seller in cash cash. 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 and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such price, or any such higher price as may be paid in the Offer, total number of outstanding Shares being hereinafter referred to herein as the "Offer PriceFully Diluted Shares"). The obligation of Merger Sub to consummate ) (the Offer "Minimum Condition") and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those the other conditions set forth in Annex A I hereto. The Company agrees that no shares of Company Common Stock held by Parent and Merger Subsidiary expressly reserve the Company or any of right to waive the Company Subsidiaries (as defined below) will be tendered pursuant conditions to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will notprovided that, without the prior written consent of the Company, (i) decrease or no change may be made which changes the form of consideration to be paid, decreases the consideration payable price per Share or the number of Shares sought in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the imposes conditions to the Offer in addition to those set forth in Annex I, changes or waives the Minimum Condition, extends the Offer (but may not waive except as set forth in the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawnfollowing sentence), or (v) make makes any other change in the terms or conditions of to any condition to the Offer set forth in Annex I which is adverse to the holders of the shares of Company Common StockShares. Merger Sub agrees that, subject Subject to the terms and conditions of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, it will Merger Subsidiary shall accept for payment and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after expiration of the Offeracceptance; provided, however, provided that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Subsidiary may extend the Offer from time to time until if, at the earlier of the consummation scheduled expiration date of the Offer or 30 Business Days after any extension thereof any of the date hereofconditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or waived, and shall Merger Subsidiary may extend the Offer for a further period of time of not more than 20 business days to meet the objective (x) which is not a condition to the extent necessary to comply Offer) that there be validly tendered, in accordance with the waiting period requirements terms of the Offer, prior to the expiration date of the Offer (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act"so extended) and (y) upon the request not withdrawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the CompanyFully Diluted Shares. Subject to Section 9.1, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy if the condition set forth in clause (2ii) of the first paragraph of Annex A. The Company I is not satisfied as of the date the Offer would otherwise have expired, Merger Subsidiary shall extend the Offer until the earlier of (i) the date that is 30 days after the first scheduled expiration date and Merger Sub shall use commercially reasonable efforts to satisfy (ii) the conditions date the condition set forth in clause (ii) of the first paragraph of Annex A as soon as practicableI is satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cheyenne Software Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing (and shall not have been waived by the Purchaser), the Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) following business days after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, public announcement of the Company ("Company Common Stock") at a price execution of $20.25 per sharethis Agreement. The Purchaser shall, net on the terms of and subject to the seller in cash (such price, prior satisfaction or any such higher price as may be paid in waiver of the conditions of the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any up to 27,000,000 Shares validly tendered and not withdrawn pursuant to the Offer (or such other number of Shares as represents an absolute majority of the excess of (i) all shares of Company Common Stock outstanding on the Expiration Date on a fully-diluted basis, minus (ii) the total number of Shares issuable upon exercise of all outstanding employee stock options, with 27,000,000 Shares or such other number being herein referred to as the "50% Share Number") as soon as practicable after the later of the satisfaction of the conditions of the Offer and the expiration of the Offer; provided, however, that no such payment shall be made until after the calculation of the applicable proration factor in the Offer. The obligation of the Purchaser to purchase and pay for shares tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock Shares held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to the Purchaser pursuant to the Offer; provided. The Purchaser expressly reserves the right to waive any of such conditions, however, that prior to increase 2 the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration price per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant Offer and to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change changes in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not no change may be obligated to accept for payment and pay for made which decreases the price per Share payable in the Offer, reduces the number of Shares to be purchased in the aggregateOffer, more than 50.1% changes the form of consideration to be paid in the outstanding shares Offer, modifies any of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied hereto in any manner adverse to the holders of Shares or, to except as provided in the extent permitted by this Agreementnext two sentences, waived by Merger Sub as extends the Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of any the Company, (i) extend the Offer beyond the scheduled expiration date, Merger Sub may which shall be 20 business days following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser's obligation to accept for payment and to pay for the Shares shall not be satisfied or waived, or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. So long as this Agreement is in effect and the condition to the Offer set forth in clause (i) of the first paragraph of Annex A has not been satisfied or waived, the Purchaser shall extend the Offer from time to time until for a period or successive periods not to exceed 10 business days each after the earlier previously scheduled expiration date of the consummation Offer. The Per Share Cash Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 1 contract
Samples: Alumax Inc
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase (the "Offer") at least 50.1% of to purchase for cash all shares outstanding (on a fully diluted basis) of the issued and out standing common stock, par value $.25 .01 per shareshare (referred to herein as either the "Shares" or "Company Common Stock"), of the Company (including the associated Common Stock Purchase Rights (the "Company Common StockRights") issued pursuant to the Rights Agreement between the Company and Harris Trust Company of New York, as Rights Agent, dated as of Septex xxx 11, 1997 (the "Rights Agreement")), at a price of $20.25 17.50 per shareShare, 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 which, together with the Shares beneficially owned by Parent or the Purchaser, represents at least a major ity of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver (except that the Minimum Condition may not be waived) of Merger Sub the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to consummate do so under applicable law. The obligations of the Purchaser to commence the Offer and to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company or any of the Company Subsidiaries (as defined below"Offer to Purchase") will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with containing the terms thereof set forth in this Agree ment, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or Section 2.09. Merger Sub will not, without waive the prior written consent of Minimum Condition and shall not decrease the Company, (i) decrease Offer Price or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn)Shares sought, or (v) make amend any other change in the terms or conditions condition of the Offer which is in any manner adverse to the holders of the shares Shares (other than with re spect to insignificant changes or amendments) without the written consent of the Company Common Stock. Merger Sub agrees that(such consent to be autho rized by the Board of Directors of the Company or a duly authorized committee thereof), subject to PROVIDED, HOWEVER, that if on the terms and conditions initial scheduled expiration date of the Offer and this Agreement(as it may be extended), it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant conditions to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in have been satisfied or waived, the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If from the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of December 31, 1998. In addition, the Offer or 30 Business Days after the date hereof, Price may be increased and shall extend the Offer (x) may be extended to the extent necessary to comply required by law in connection with such increase in each case without the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request consent of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dawson Production Services Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with pursuant to Section 8.01 10.1 hereof, as promptly (as reasonably practicable, but in no event later than five fifteen Business Days (as defined below) following the date hereofpublic 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), Merger Sub Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an a tender offer (as it may be amended from time to time as permitted by this Agreement, the "OFFER") to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("shares of Company Common Stock") Stock issued and outstanding at a price of U.S. $20.25 35.00 per share, net to the seller in cash (such price, or any such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "Offer PriceOFFER PRICE"). The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those conditions set forth in Annex A hereto. The Company agrees the condition that no shares of Company Common Stock held there shall be validly tendered (other than by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09guaranteed delivery where actual delivery has not occurred) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease prior to the expiration date of the Offer and not withdrawn, a number of shares of Company Common Stock sought pursuant to that, together with the Offershares of Company Common Stock then owned by Parent and/or Purchaser, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any represents at least a majority of the conditions to the Offer (but may not waive the condition that not less than 50.1% shares of the 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 securities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the time of determination) (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 have been validly tendered be made by means of an offer to purchase (the "OFFER TO PURCHASE") and not withdrawn)the related letter of transmittal, or (v) make any other change 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 terms 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 conditions subject to any financing condition." Without limiting the foregoing, effective upon Consummation of the Offer which is adverse Offer, the holder of such Company Common Stock will sell and assign to the holders Purchaser all right, 9 of 56 title and interest in and to all of the shares of Company Common Stock. Merger Sub agrees thatStock tendered (including, subject but not limited to, such holder's right to the terms any and conditions of the Offer all dividends and this Agreementdistributions, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; providedif any, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedwith a record date before, and may not be a payment date after, the scheduled or extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basisthe "Shares") of common stock, $.01 par value $.25 per shareshare (the "Common Stock"), of the Company ("Company Common Stock"including the related Rights (as defined in Section 3.18 of this Agreement)) at a price of $20.25 12.85 per shareShare, 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"). The obligation , subject to (i) there being validly tendered and not withdrawn prior to the expiration of Merger Sub the Offer, that number of Shares which represents at least seventy-five percent (75%) of the Shares outstanding on a fully diluted basis (the "Minimum Condition"), (ii) the receipt by Parent of financing sufficient in amount to enable it and the Purchaser to consummate the Offer and the Merger (as hereinafter defined) and to refinance certain indebtedness for borrowed money of the Company and to pay related fees and expenses (the "Financing Condition") and (iii) the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms. As used herein, "fully diluted basis" takes into account issued and outstanding Shares and Shares subject to issuance under outstanding stock options and warrants. The obligations of the Purchaser to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition, the Financing Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition, the Financing Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought, or amend any other condition of the Company Subsidiaries (as defined below) will be tendered pursuant Offer in any manner adverse to the Offerholders of the Shares without the written consent of the Company; provided, however, that prior if on the initial scheduled expiration date of the Offer, which shall be twenty business days after the date the Offer is commenced, all conditions to the Effective Time Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date for one or more periods totalling not more than thirty days. Notwithstanding the foregoing, (as defined below)i) Parent or the Purchaser can waive, shares of Company Common Stock held by in writing, the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, Minimum Condition without the prior written consent of the Company, (i) decrease or change the form of the consideration payable Company in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except event that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than at least 50.1% of the Company Common Stock Shares outstanding on a fully diluted basis shall have been are validly tendered and not withdrawn), withdrawn on or (v) make any other change in the terms or conditions of the Offer which is adverse prior to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions expiration of the Offer and this Agreement(ii) the Purchaser may extend the initial expiration date or any extension thereof, it will as the Purchaser reasonably deems necessary to comply with any legal or regulatory requirements, including but not limited to, the termination or expiration of any applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act"). The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for all shares Shares tendered as soon as it is legally permitted to do so under applicable law; provided, however, that if, immediately prior to the initial expiration date of Company Common Stock validly the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer promptly after expiration equal more than seventy-five percent (75%) of the Offer; providedoutstanding Shares, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more but less than 50.190% of the outstanding shares Shares, the Purchaser may extend the Offer for a period not to exceed twenty business days, notwithstanding that all conditions to the Offer are satisfied as of Company Common Stocksuch expiration date of the Offer. The Notwithstanding the foregoing, the Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after beyond the date of termination of this Agreement pursuant to Article VII hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Phonetel Technologies Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 14d2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase (the "Offer") at least 50.1% of to purchase for cash all shares of the issued and outstanding (on a fully diluted basis) of common stock, par value $.25 .01 per shareshare (referred to herein as either the "Shares" or "Company Common Stock"), of the Company (including the associated Common Stock Purchase Rights (the "Company Common StockRights") issued pursuant to the Rights Agreement between the Company and Harrxx Xxxst Company of New York, as Rights Agent, dated as of September 11, 1997 (the "Rights Agreement")), at a price of $20.25 17.50 per shareShare, 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 which, together with the Shares beneficially owned 3 by Parent or the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver (except that the Minimum Condition may not be waived) of Merger Sub the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to consummate do so under applicable law. The obligations of the Purchaser to commence the Offer and to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company or any of the Company Subsidiaries (as defined below"Offer to Purchase") will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with containing the terms thereof set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or Section 2.09. Merger Sub will not, without waive the prior written consent of Minimum Condition and shall not decrease the Company, (i) decrease Offer Price or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn)Shares sought, or (v) make amend any other change in the terms or conditions condition of the Offer which is in any manner adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject Shares (other than with respect to insignificant changes or amendments) without the terms and conditions written consent of the Offer and this Agreement, it will accept for payment and pay for all shares Company (such consent to be authorized by the Board of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration Directors of the Offer; Company or a duly authorized committee thereof), provided, however, that Merger Sub if on the initial scheduled expiration date of the Offer (as it may be extended), all conditions to the Offer shall not be obligated to accept for payment and pay for in have been satisfied or waived, the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If from the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of December 31, 1998. In addition, the Offer or 30 Business Days after the date hereof, Price may be increased and shall extend the Offer (x) may be extended to the extent necessary to comply required by law in connection with such increase in each case without the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request consent of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Key Energy Group Inc
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.01 hereofAnnex I hereto, promptly (but in no event later than within five Business Days (as defined below) following business days after the date hereof), Merger Sub Subsidiary shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "OfferOFFER") at least 50.1% to purchase all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 0.01 per share, of the Company (the "Company Common StockCOMPANY STOCK") at a price of $20.25 5.75 per share, net to the seller in cash (such price, or any such higher price as may cash. The Offer shall be paid subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, being referred prior to herein as the "Offer Price"). The obligation expiration date of Merger Sub to consummate the Offer and to accept for payment and to pay for any not withdrawn, a number of shares of Company Common Stock tendered pursuant thereto shall be subject only that, together with the shares of Company Stock then owned by Parent and its Affiliates, represents at least a majority of the shares of Company Stock outstanding on a fully-diluted basis (the "MINIMUM CONDITION") and to those the other conditions set forth in Annex A I hereto. The Company agrees that no shares of Company Common Stock held by Merger Subsidiary expressly reserves the Company or right to waive any of the Company Subsidiaries (as defined below) will be tendered pursuant conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will notprovided that, without the prior written consent of the Company, (i) decrease or the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the consideration payable in the Offer, (ii) decrease price per share of Company Stock or the number of shares of Company Common Stock sought pursuant to in the Offer, (iii) impose additional Offer or imposes conditions to the Offer, (iv) change the conditions Offer in addition to the Offer, except that Merger Sub those set forth in its sole discretion may waive Annex I. If any of the conditions to the Offer (but may is not waive the condition that not less than 50.1% satisfied or waived on any scheduled expiration date of the Company Common Stock outstanding on a fully diluted basis Offer, Merger Subsidiary shall have been validly tendered and extend the Offer from time to time until such conditions are satisfied or waived; provided that Merger Subsidiary shall not withdrawn)be required to extend the Offer beyond August 1, or (v) make any other change in the terms or conditions 2001. Any individual extension of the Offer which is adverse pursuant to the holders preceding sentence shall not exceed 10 business days. If at the expiration of the Offer all of the conditions to the Offer have been satisfied or 6 waived, Merger Subsidiary may (and if the number of shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; providedequals 80% or more, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more but less than 50.190% of the outstanding shares of Company Common Stock. The , shall) extend the Offer shall initially provide that it shall expire pursuant to an amendment to the Offer providing for a "subsequent offering period" not to exceed 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, business days to the extent permitted by this Agreementunder, waived by Merger Sub and in compliance with, Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). Subject to the foregoing and applicable law and upon the terms and subject to the conditions of any scheduled expiration datethe Offer, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days Subsidiary shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the date hereof, and shall extend on which Merger Subsidiary first accepts shares for payment pursuant to the Offer (x) the "ACCEPTANCE DATE"), all shares of Company Stock validly tendered and not withdrawn pursuant to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (PFC Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, Common Stock of the par value of $.25 1.00 per share, share of the Company (the "Company Common Stock"), and all of the outstanding shares of Class A Stock of the par value of $1.00 per share of the Company (the "Class A Stock") (the shares of Common Stock and the shares of Class A Stock are sometimes referred to together as the "Shares"), at a price of $20.25 45.50 per shareShare, 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 which represents at the time of acceptance for payment of any Shares pursuant to the Offer (the "Share Purchase Date") at least (i) two-thirds of the outstanding Shares (determined on a fully diluted basis) and (ii) Shares entitled to cast at least two-thirds of the votes (counting the Class A Stock as entitled to cast 1/10th of a vote per share) that may be cast by all holders of Shares on the Merger (as defined in Section 1.4) (determined 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 Shares and Shares subject to issuance at the discretion of the holders under stock options or other stock based awards outstanding at the Share Purchase Date, excluding any portions of such options or awards surrendered to the Company pursuant to Section 2.4 of this Agreement). The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, made by means of an offer to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder purchase (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.Offer to
Appears in 1 contract
Samples: Agreement and Plan of Merger (Honeywell International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and subject to the terms hereof, as promptly (as practicable, but in no event later than five (5) Business Days (as defined below) following after the date hereof)public announcement of the execution hereof by the parties, Merger Sub Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act) an offer to purchase Act of 1934, as amended (the "OfferExchange Act")) at least 50.1% of ,the Offer for any and all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") Shares, at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and Parent to accept for payment and to pay for any shares of Company Common Stock Shares tendered pursuant thereto shall be subject only to (i) the condition that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex A. Parent expressly reserves the right to increase the Offer Price 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 (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A, (v) amends the conditions set forth in Annex A heretoto broaden the scope of such conditions, (vi) amends any other term of the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b)), or (viii) amends the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and may be waived by Parent, in whole or in part at any time and from time to time, in its sole discretion other than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent 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 Company agrees that no shares of Company Common Stock Shares held by the Company or any of the Company its Subsidiaries (as defined belowin Section 9.2) will be tendered pursuant in the Offer. (b) Subject to the Offerterms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) Business Days after the date the Offer is commenced; provided, 7 however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company's Board of Directors, Parent may (i) decrease or change the form of the consideration payable in from time to time extend the Offer, (ii) decrease if at the number scheduled expiration date of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive Offer any of the conditions to the Offer shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; (but may ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not waive more than twenty (20) Business Days beyond the condition latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if on such expiration date there shall not less than 50.1have been tendered at least 90% of the Company Common Stock outstanding Shares. Parent agrees that if all of the conditions to the Offer set forth on a fully diluted basis shall have been validly tendered and Annex A are not withdrawn), or (v) make satisfied on any other change in the terms or conditions scheduled expiration date of the Offer which is adverse then, provided that all such conditions are reasonably capable of being satisfied prior to October 31, 1997, Parent shall extend the holders of Offer from time to time until such conditions are satisfied or waived, provided that Parent shall not be required to extend the shares of Company Common StockOffer beyond October 31, 1997. Merger Sub agrees that, subject Subject to the terms and conditions of the Offer and this Agreement, it will Parent shall accept for payment payment, and pay for for, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be Parent becomes obligated to accept for payment and pay for in pursuant to the Offer, in as promptly as practicable after the aggregate, more than 50.1% expiration of the outstanding shares of Company Common StockOffer. The (c) As soon as practicable on the date the Offer shall initially provide that it shall expire 20 Business Days after it is commenced, Parent shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and may not be extended except as provided below. If supplements thereto, and including all exhibits thereto, the conditions set forth in Annex A are not satisfied or, "Schedule 14D-1") with respect to the extent permitted Offer. The Schedule 14D-1 shall contain as an exhibit or incorporate by this Agreement, waived by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Merger Sub as of any scheduled expiration dateagree that the Schedule 14D-1, Merger Sub may extend the Offer from time to time until Purchase and all amendments or supplements thereto (which together constitute the earlier of the consummation of the "Offer or 30 Business Days after the date hereof, and Documents") shall extend the Offer (x) to the extent necessary to comply in all material respects with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Exchange Act of 1976, as amended, and the rules and regulations thereunder and other applicable Laws (as defined in Section 5.1(i)). Parent and Merger Sub further agree that the "HSR Act") and (y) upon Offer Documents, on the request date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the Companycircumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a date no later than November 30material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, 1997 in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary for IHK to satisfy cause the condition set forth Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in clause (2) of Annex A. each case as and to the extent required by applicable federal securities laws. The Company and Merger Sub its counsel shall use commercially be given reasonable efforts opportunity to satisfy review and comment on the conditions set forth Offer Documents prior to the filing thereof with the SEC. Parent agrees to provide the Company and its counsel in Annex A as soon as practicablewriting with any comments Parent or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. 1.2.
Appears in 1 contract
Samples: Annex B Agreement and Plan of Merger (Chips & Technologies Inc)
The Offer. (a) Provided that If this Agreement shall has not have been terminated in accordance with Section 8.01 hereof9.1 and none of the events set forth in Exhibit A hereto (excluding items (f) – (j) thereof) shall have occurred and be continuing, as promptly (but as practicable and in no any event later than five Business Days (as defined below) following within ten business days after the date hereof), Merger Sub Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") Shares at a price of $20.25 14.00 per shareCompany Common Share, net to the seller in cash (such price, or any such higher the highest price as may be per Company Common Share paid in the Offer, being referred to herein as the "“Offer Price"”). The obligation obligations of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock Shares validly tendered pursuant thereto under the Offer on or before the expiration of the Offer and not withdrawn shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock there being validly tendered and not withdrawn pursuant to before the Offer promptly after final expiration of the Offer; provided, however, Offer that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares number of Company Common StockShares which, together with the Company Common Shares beneficially owned by Parent or Purchaser or any of their Subsidiaries, represents at least a majority of the Company Common Shares then issued and outstanding on a Fully-Diluted Basis (the “Minimum Condition”), and (ii) the other conditions set forth in Exhibit A hereto. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedbe made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement, the Minimum Condition, and may not be extended except as provided below. If the other conditions set forth in Annex Exhibit A are not satisfied orhereto. “Fully-Diluted Basis” means, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub the number of Company Common Shares issued and outstanding, together with the Company Common Shares that may extend be issued by the Company under warrants, options, rights or other obligations outstanding at that date whether or not vested or then exercisable. Unless extended in accordance with Section 1.1(b) and/or Section 1.1(c) below, the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days shall expire 20 business days after the date hereof, and shall extend of its commencement (the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976“Initial Expiration Date” and, as amendedmay be extended in accordance with Section 1.1(b) and/or Section 1.1(c) below, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable“Expiration Date”).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofArticle VII, promptly then (i) not later than the first Business Day (as defined below) after execution of this Agreement, the Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five ten Business Days (as defined below) following after the date hereof)of such announcement, Merger Sub shall commence (within the meaning of Rule 14d-2 14d-2(a) under the Exchange ActAct (as defined below)) an offer the Offer to purchase (all of the "Offer") at least 50.1% of all outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") Stock at a the price of $20.25 10 per share, net to the seller of such shares in cash (such price, or any such higher price per share of the Company Common Stock as may be paid in the Offer, being referred to herein as the "Offer PricePRICE PER SHARE"). The obligation of Merger Sub to consummate the Offer and to accept for payment payment, purchase and to pay for any shares of the Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those (A) at least that number of shares of the Company Common Stock equivalent to a majority of the total issued and outstanding shares of the Company Common Stock on a fully diluted basis (assuming the exercise of all outstanding Options (as defined in Section 3.1(b)(i) (other than Options held by the Management Group (as defined below)) and any other rights to acquire shares of the Company Common Stock) on the date such shares are purchased pursuant to the Offer being validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION"), and (B) the satisfaction of the other conditions set forth in Annex ANNEX A hereto, which is incorporated herein by reference, any of which conditions may be waived by the Parent in its sole discretion; PROVIDED, HOWEVER, that the Parent shall not waive the Minimum Condition or the Antitrust Condition (as defined below) without the prior written consent of the Company. The Company agrees that no shares of the Company Common Stock held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to Merger Sub pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement shall not have been terminated in accordance with Section 8.01 hereofand (ii) Merger Sub shall, promptly (as soon as practicable, but in no event later than five Business Days (as defined below) following after the date hereof)of such announcement, Merger Sub shall commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Exchange Act) an a tender offer to purchase (the "Offer") at least 50.1% of to purchase ----- all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("outstanding shares of Company Common Stock") Stock at a price of $20.25 10.00 per share, net to the seller in cash without interest (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer PricePrice Per Share"), --------------- subject to reduction only for any applicable withholding taxes. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The obligation of Merger Sub to consummate the Offer and to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those (i) at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the "Minimum Shares") being validly tendered and not withdrawn prior to -------------- the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Merger Sub ------- in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to Merger Sub pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Zhone Technologies Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days eleven (as defined below11) following business days after the date public announcement of the execution hereof), Merger Sub Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase (the "Offer") at least 50.1% of to purchase for cash all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("issued and outstanding Company Common StockStock (the ") Shares"), at a price per Share, based upon the representations set forth in Section 3.2 hereof, of $20.25 per share, 5.00 net to the seller in cash (such priceprice per Share, 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 which, together with the Shares beneficially owned by Parent or Purchaser, represent at least 60% of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation initial expiration date of Merger Sub the Offer shall be the twentieth business day from and after the date the Offer is commenced as determined in accordance with Rule 14d-2(a) under the Exchange Act (the "Initial Expiration Date"). Unless the Offer is extended as provided herein, Purchaser shall, on the terms and subject to consummate the prior satisfaction or waiver (except that the Minimum Condition may not be waived) of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company or any of the Company Subsidiaries (as defined below"Offer to Purchase") will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with containing the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable set forth in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment the Minimum Condition and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the other conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicablehereto.
Appears in 1 contract
The Offer. (a) Section 1.1.1 Provided that this Agreement shall not have been terminated in accordance with Section 8.01 7.1 hereof, Merger Sub shall, as promptly as practicable after the date hereof (but in no event later than five and shall use commercially reasonably efforts to, within ten (10) Business Days (as defined below) following after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer the Offer. Each share of Company Common Stock accepted by Merger Sub pursuant to purchase the Offer shall be exchanged for the right to receive that number of shares of Manpower Common Stock equal to $18.75 divided by the Average Trading Price (rounded to the fourth decimal place); provided, however, that if the number of shares so calculated (1) is greater than 0.4497, then such number shall be reduced to 0.4497 (the "Offer"“Fixed Exchange Rate”), or (2) at least 50.1% is less than 0.3680, then such number shall be increased to 0.3680; and provided, further, that if the Average Trading Price is less than $37.80, then Manpower shall have the option, but not the obligation, to issue an additional number of all shares outstanding of Manpower Common Stock (on a fully diluted basisthe “Additional Shares”) for each share of common stock, par value $.25 per share, Company Common Stock such that the sum of (a) the product of the Company Fixed Exchange Rate and the Average Trading Price and ("Company b) the product of the Additional Shares and the Average Trading Price shall equal $17.00 (such number of shares of Manpower Common Stock") at a price , as adjusted if applicable, and the number of $20.25 per shareAdditional Shares are hereinafter collectively referred to as the “Exchange Rate”). If, net prior to 12:00 noon New York time on the first trading day preceding the Appointment Time, Manpower has, by written notice to the seller in cash (such priceCompany, or any such higher price as may elected to exercise its option to issue the Additional Shares, then the Company shall not have the right to terminate this Agreement pursuant to Section 7.1.7. The initial expiration date of the Offer shall be paid in the twentieth Business Day following commencement of the Offer, being referred to herein as the "Offer Price"). The obligation obligations of Merger Sub to consummate accept for exchange and exchange the number of shares of Manpower Common Stock for shares of Company Common Stock shall be subject to the condition (the “Minimum Condition”) that there shall be validly tendered in accordance with the terms of the Offer and to accept for payment and to pay for any not withdrawn a number of shares of Company Common Stock (including shares of Company Common Stock tendered pursuant thereto shall be subject only to those the Tender and Voting Agreement) which, together with the shares of Company Common Stock then owned by Manpower and Merger Sub (if any), immediately prior to acceptance for exchange of shares of Company Common Stock pursuant to the Offer, represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to such acceptance, and (ii) a number of shares of Company Common Stock determined by Manpower up to a maximum of the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities outstanding on the date hereof (such sum of shares is hereinafter referred to as the “Diluted Share Amount”), and to the other conditions set forth in Annex A I hereto. The Company agrees that no shares Manpower and Merger Sub expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, no change may be made which (iA) decrease or change the form of the consideration payable in the Offer, (ii) decrease decreases the number of shares of Company Common Stock sought pursuant to in the Offer, (iiiB) impose additional changes the form or amount of consideration to be paid, (C) imposes conditions to the OfferOffer in addition to those set forth in Annex I, (ivD) changes or waives the Minimum Condition or any of the conditions set forth in clauses (2), (3), (4), (5) or (6) of the first paragraph of Annex I, provided, that if the Company delivers to Manpower the Company’s written consent to the waiver of clauses (5) and (6) of the first paragraph of Annex I, then Manpower and Merger Sub shall be deemed to have waived clauses (5) and (6) of the first paragraph of Annex I, (E) changes the expiration date of the Offer (except as set forth in the following two sentences), or (F) makes any other change to any of the terms and conditions to the Offer which is adverse in any material respect to the holders of shares of Company Common Stock. Subject to the terms of the Offer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for exchange 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 1.1.1) and shall exchange all such shares of Company Common Stock for shares of Manpower Common Stock as provided herein promptly after expiration of the Offeracceptance; provided, however, that (x) Merger Sub shall may extend the Offer for successive extension periods not be obligated in excess of ten (10) Business Days per extension up to accept for payment and pay for in the Outside Date if, at the then scheduled expiration date of the Offer, in the aggregate, more than 50.1% any of the outstanding shares of Company Common Stock. The conditions to the Offer shall initially provide that it shall expire 20 Business Days after it is commencednot have been satisfied or waived, until such time as such conditions are satisfied or waived, and (y) Merger Sub may not be extended except as provided below. If extend the conditions set forth in Annex A are not satisfied or, Offer if and to the extent permitted required by this Agreement, waived by Merger Sub as the applicable rules and regulations of any scheduled expiration datethe SEC or NYSE. In addition, Merger Sub may extend the Offer from after the acceptance of shares of Company Common Stock thereunder for a further period of time (not to time until exceed twenty (20) Business Days) by means of a subsequent offering period under Rule 14d-11 promulgated under the earlier Exchange Act (the “Extended Offer”) if, as of such date, shares of Company Common Stock representing less than 80% of the Diluted Share Amount have been tendered. If an Extended Offer is made, Merger Sub shall immediately accept for exchange all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Extended Offer as they are tendered and shall exchange all such shares of Company Common Stock for shares of Manpower Common Stock as provided herein promptly after acceptance. In this Agreement other than in this Article 1, the term “Offer” shall include the Extended Offer. Manpower will announce the Exchange Rate with respect to each share of Company Common Stock that is to be exchanged in the Offer by 9:00 a.m. New York City time on the trading day immediately preceding the Appointment Time. No fraction of a share of Manpower Common Stock will be issued in connection with the exchange of Manpower Common Stock for shares of Company Common Stock upon consummation of the Offer or 30 Business Days Offer, but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Manpower Common Stock (after the date hereof, and shall extend aggregating all fractional shares of Manpower Common Stock that otherwise would be received by such Company Shareholder) in the Offer shall receive from Manpower an amount of cash (x) rounded up to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976nearest whole cent), as amendedwithout interest, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 equal to the extent necessary for IHK to satisfy product obtained by multiplying such fraction by the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableAverage Trading Price.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof8.1 and subject to the satisfaction of the conditions set forth in Annex A hereto (the "Offer Conditions"), promptly (but in no event later than five Business Days (Purchaser shall, as defined below) following soon as reasonably practicable after the date hereof (and in any event within five business days from the date of public announcement of the execution hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase (the "Offer") at least 50.1% to purchase for cash up to 80,916,766 of all the issued and outstanding shares outstanding (on a fully diluted basis) of common stockCommon Stock, par value $.25 1.00 per share, of the Company share ("Company Common Stock"), of the Company and the associated Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of April 24, 1997, between the Company and First Chicago Trust Company of New York (the "Rights Agreement") at a price of $20.25 37.125 per shareshare of Company Common Stock, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")cash. The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those the satisfaction or waiver by Purchaser of the Offer Conditions. Purchaser expressly reserves the right, in its sole discretion, to waive any such condition (other than the Minimum Condition as defined in the Offer Conditions) and make any other changes in the terms and conditions set forth of the Offer; provided that, unless previously approved by the Company in Annex A hereto. The Company agrees that writing, no shares change may be made which changes the Minimum Condition or decreases the price per share of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to payable in the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change changes the form of the consideration payable in the Offer, increases or reduces the maximum number (ii80,916,766 Shares) decrease the number of shares of Company Common Stock sought pursuant to be purchased in the OfferOffer (the "Maximum Offer Number"), (iii) impose additional conditions to amends the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the Offer Conditions or imposes conditions to the Offer (but may not waive in addition to the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn)Offer Conditions, or (v) make any makes other change in changes to the terms or conditions of to the Offer which is that are adverse to the holders of the shares of Company Common Stock. Merger Sub Purchaser covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the Offer and this AgreementConditions, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as it is permitted to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stockdo so under applicable law. The Offer shall initially provide that it shall be scheduled to expire 20 Business Days after it is commencedbusiness days following the commencement thereof, provided that, unless this Agreement has been terminated pursuant to Section 8.1 and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied orsubject to Section 1.1(b), to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may Purchaser shall extend the Offer from time to time until in the earlier of the consummation event that, at a then-scheduled expiration date, all of the Offer Conditions have not been satisfied or 30 Business Days after waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the date hereof, and shall extend Company) the lesser of 10 additional business days or such fewer number of days that Purchaser reasonably believes are necessary to cause the Offer Conditions to be satisfied. It is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to any such condition (xexcept for any action or inaction by Purchaser or Parent constituting a breach of this Agreement). Except as provided in Section 1.1(b) or 1.1(d), Purchaser shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Morton International Inc /In/)
The Offer. (a) Section 1.1.1 Provided that this Agreement shall not have been terminated in accordance with Section 8.01 7.1 hereof, Merger Sub shall, as promptly as practicable after the date hereof (but in no event later than five and shall use commercially reasonably efforts to, within ten (10) Business Days (as defined below) following after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer the Offer. Each share of Company Common Stock accepted by Merger Sub pursuant to purchase the Offer shall be exchanged for the right to receive that number of shares of Manpower Common Stock equal to $18.75 divided by the Average Trading Price (rounded to the fourth decimal place); provided, however, that if the number of shares so calculated (1) is greater than 0.4497, then such number shall be reduced to 0.4497 (the "OfferFixed Exchange Rate"), or (2) is less than 0.3680, then such number shall be increased to 0.3680; and provided, further, that if the Average Trading Price is less than $37.80, then Manpower shall have the option, but not the obligation, to issue an additional number of shares of Manpower Common Stock (the "Additional Shares") at least 50.1% for each share of all shares outstanding Company Common Stock such that the sum of (on a fully diluted basisa) of common stock, par value $.25 per share, the product of the Company Fixed Exchange Rate and the Average Trading Price and ("Company b) the product of the Additional Shares and the Average Trading Price shall equal $17.00 (such number of shares of Manpower Common Stock") at a price , as adjusted if applicable, and the number of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being Additional Shares are hereinafter collectively referred to herein as the "Offer PriceExchange Rate"). If, prior to 12:00 noon New York time on the first trading day preceding the Appointment Time, Manpower has, by written notice to the Company, elected to exercise its option to issue the Additional Shares, then the Company shall not have the right to terminate this Agreement pursuant to Section 7.1.7. The obligation initial expiration date of the Offer shall be the twentieth Business Day following commencement of the Offer. The obligations of Merger Sub to consummate accept for exchange and exchange the number of shares of Manpower Common Stock for shares of Company Common Stock shall be subject to the condition (the "Minimum Condition") that there shall be validly tendered in accordance with the terms of the Offer and to accept for payment and to pay for any not withdrawn a number of shares of Company Common Stock (including shares of Company Common Stock tendered pursuant thereto shall be subject only to those the Tender and Voting Agreement) which, together with the shares of Company Common Stock then owned by Manpower and Merger Sub (if any), immediately prior to acceptance for exchange of shares of Company Common Stock pursuant to the Offer, represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to such acceptance, and (ii) a number of shares of Company Common Stock determined by Manpower up to a maximum of the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities outstanding on the date hereof (such sum of shares is hereinafter referred to as the "Diluted Share Amount"), and to the other conditions set forth in Annex A I hereto. The Company agrees that no shares Manpower and Merger Sub expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, no change may be made which (iA) decrease or change the form of the consideration payable in the Offer, (ii) decrease decreases the number of shares of Company Common Stock sought pursuant to in the Offer, (iiiB) impose additional changes the form or amount of consideration to be paid, (C) imposes conditions to the OfferOffer in addition to those set forth in Annex I, (ivD) change changes or waives the conditions to the Offer, except that Merger Sub in its sole discretion may waive Minimum Condition or any of the conditions set forth in clauses (2), (3), (4), (5) or (6) of the first paragraph of Annex I, provided, that if the Company delivers to Manpower the Company's written consent to the waiver of clauses (5) and (6) of the first paragraph of Annex I, then Manpower and Merger Sub shall be deemed to have waived clauses (5) and (6) of the first paragraph of Annex I, (E) changes the expiration date of the Offer (but may not waive except as set forth in the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawnfollowing two sentences), or (vF) make makes any other change in to any of the terms or and conditions of to the Offer which is adverse in any material respect to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.Common
Appears in 1 contract
Samples: Agreement and Plan of Merger (Right Management Consultants Inc)
The Offer. (a) Provided Subject to the provisions of this Agreement, as promptly as practicable after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall not have been terminated amend the Offer to reflect this Agreement and amend the conditions to the Offer in accordance with Section 8.01 hereofherewith. The expiration date of the Offer shall be the tenth day, promptly other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (but in no event later than five Business Days (as defined below) following each a "BUSINESS DAY"), from and after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under Offer is amended to provide for the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, dated August 8, 2002 and contained in the Schedule TO, and a related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of Sub to accept for payment, and pay for, any Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by (the Company or "OFFER CONDITIONS") (any of which may be waived in whole or in part by Parent and Sub in their reasonable discretion, except that Parent and Sub shall not waive the Company Subsidiaries (as defined belowMinimum Condition without the consent of the Company) will be tendered pursuant and to the Offer; provided, however, that prior terms and conditions of this Agreement. Parent and Sub expressly reserve the right to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with modify the terms thereof or Section 2.09. Merger Sub will notof the Offer, except that, without the prior written consent of the Company, Parent and Sub shall not (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease reduce the number of shares of Company Common Stock sought pursuant subject to the Offer, ; (ii) reduce the Offer Price; (iii) impose additional amend or add to the Offer Conditions; (iv) except as provided in the next sentence, extend the Offer; (v) change the form of or reduce the consideration payable in the Offer; or (vi) amend any other term of the Offer in any manner adverse to the Company Stockholders. Notwithstanding the foregoing, Parent and Sub (i) shall extend the Offer for no longer than five Business Days at any one time, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; (ii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "COMMISSION") applicable to the Offer, ; (iii) may extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence; or (iv) change may extend the Offer for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions to of the Offer, except that Merger Sub in its sole discretion may waive any of shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the conditions date on which Sub first accepts shares for payment pursuant to the Offer (but may not waive the condition that not less than 50.1% such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawnExchange Act, the "ACCEPTANCE DATE"), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofits terms, promptly (but in no event later than five Business Days (Acquisition Sub shall, as defined below) following soon as practicable after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the "Exchange Act) ")), an offer to purchase (as such offer to purchase may be amended in accordance with the terms of this Agreement, the "Offer") at least 50.1% all of all the issued and outstanding shares outstanding (on a fully diluted basis"Shares") of common stock, par value $.25 0.01 per share, of the Company (the "Company Common Stock") at a price of not less than $20.25 13.875 per shareShare, net to the seller in cash (less applicable withholding taxes, if any) (such price, or any such higher other price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation After the commencement of Merger Sub to consummate the Offer, the Offer and the obligation of Acquisition Sub to accept for payment and to pay for any shares of Company Common Stock Shares tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto. The Company agrees hereto and the condition (the "Minimum Condition") that no shares of Company Common Stock held by there be validly tendered and not withdrawn prior to the Company or any expiration of the Company Subsidiaries Offer at least two-thirds of the Shares on a fully diluted basis (as defined belowthe "Minimum Percentage"). Parent and Acquisition Sub expressly reserve the right to waive any condition set forth in Annex A, to change the form or amount payable per Share in the Offer (including the Offer Price) will be tendered pursuant and to make any other changes in the terms and conditions of the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, Parent shall not amend, or permit to be amended, the Offer to (i) decrease or change the form of the consideration payable in the OfferOffer Price, (ii) decrease change the number of shares of Company Common Stock sought pursuant to the Offerconsideration into a form other than cash, (iii) impose additional add any conditions to the obligation of Acquisition Sub to accept for payment and pay for Shares tendered pursuant to the Offer, (iv) change amend (other than to waive) the Minimum Condition or the other conditions to the Offer, except that Merger Sub set forth in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn)Annex A, or (v) make any other change reduce the maximum number of Shares to be purchased in the terms or conditions Offer. If on the initial scheduled expiration date of the Offer (the "Initial Expiration Date"), which shall be 20 business days after the date the Offer is adverse commenced, all conditions to the holders Offer shall not have been satisfied or waived, Acquisition Sub may, from time to time, in its sole discretion, extend the expiration date of the shares Offer (the "Expiration Date"); provided, however, that, except as set forth below, the Expiration Date, as extended, shall be no later than the date that is 40 business days immediately following the Initial Expiration Date. Notwithstanding the foregoing, if on the Initial Expiration Date, the applicable waiting period (and any extension thereof) under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of Company Common Stock. Merger 1976 (xxx "XXX Xxx") xx respect of the Offer shall not have expired or been terminated and all other conditions to the Offer shall have been satisfied or waived other than the Minimum Condition, Acquisition Sub agrees thatshall be required to extend the Expiration Date until such waiting period shall have expired or been terminated, subject to the provisions of Section 9.1(b)(ii). Acquisition Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this AgreementOffer, it will accept for payment and pay for all shares of Company Common Stock validly Shares tendered as soon as practicable as it is legally permitted to do so under this Agreement and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stockapplicable law. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedbe made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Percentage and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicablehereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dorel Industries Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing (and shall not have been waived by the Purchaser), the Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) following business days after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, public announcement of the Company ("Company Common Stock") at a price execution of $20.25 per sharethis Agreement. The Purchaser shall, net on the terms of and subject to the seller in cash (such price, prior satisfaction or any such higher price as may be paid in waiver of the conditions of the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any up to 27,000,000 Shares validly tendered and not withdrawn pursuant to the Offer (or such other number of Shares as represents an absolute majority of the excess of (i) all shares of Company Common Stock outstanding on the Expiration Date on a fully-diluted basis, minus (ii) the total number of Shares issuable upon exercise of all outstanding employee stock options, with 27,000,000 Shares or such other number being herein referred to as the "50% Share Number") as soon as practicable after the later of the satisfaction of the conditions of the Offer and the expiration of the Offer; provided, however, that no such payment shall be made until after the calculation of the applicable proration factor in the Offer. The obligation of the Purchaser to purchase and pay for shares tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock Shares held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to the Purchaser pursuant to the Offer; provided. The Purchaser expressly reserves the right to waive any of such conditions, however, that prior to increase the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration price per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant Offer and to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change changes in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not no change may be obligated to accept for payment and pay for made which decreases the price per Share payable in the Offer, reduces the number of Shares to be purchased in the aggregateOffer, more than 50.1% changes the form of consideration to be paid in the outstanding shares Offer, modifies any of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied hereto in any manner adverse to the holders of Shares or, to except as provided in the extent permitted by this Agreementnext two sentences, waived by Merger Sub as extends the Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of any the Company, (i) extend the Offer beyond the scheduled expiration date, Merger Sub may which shall be 20 business days following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser's obligation to accept for payment and to pay for the Shares shall not be satisfied or waived, or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. So long as this Agreement is in effect and the condition to the Offer set forth in clause (i) of the first paragraph of Annex A has not been satisfied or waived, the Purchaser shall extend the Offer from time to time until for a period or successive periods not to exceed 10 business days each after the earlier previously scheduled expiration date of the consummation Offer. The Per Share Cash Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aluminum Co of America)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 As promptly as practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) following the date hereof)December 30, 2005, Merger Sub shall commence (within the meaning of Rule 14d-2 14d-2(a) under the Exchange Act) an offer to purchase (the "OfferOFFER") at least 50.1% to purchase any and all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 0.01 per share, of the Company ("Company Common StockCOMPANY COMMON STOCK") ), at a price of $20.25 6.20 per share, net to the seller in cash cash, subject to adjustment as set forth in Section 1.2(h) (the "OFFER PRICE") and subject to reduction for any applicable withholding taxes and, if such price, or payment is to be made other than to the registered holder of any such higher price as may shares, any applicable stock transfer taxes payable by such holder. The Offer shall be paid subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, being referred prior to herein as the "Offer Price"). The obligation expiration date of Merger Sub to consummate the Offer Offer, and to accept for payment and to pay for not withdrawn, a number of shares of Company Common Stock that, together with any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no then owned by Parent or any of its subsidiaries, represents at least a majority of the sum of (i) the outstanding shares of Company Common Stock held by the Company or any as of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent date of the Company, (i) decrease or change the form expiration of the consideration payable in the Offer, and (ii) decrease the number of shares of Company Common Stock sought issuable pursuant to Company Options and Company Warrants that are vested and exercisable as of the OfferTermination Date (as defined in Section 8.1(c)) (the "MINIMUM CONDITION"), (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that and Merger Sub in its sole discretion may waive shall not be required to accept for payment or pay for any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to and may terminate the terms and conditions Offer, if, on the expiration date of the Offer and (as extended in accordance with this AgreementSection 1.2), it will accept for payment and pay for all shares of Company Common Stock validly tendered and (i) the Minimum Condition has not withdrawn pursuant to been met or (ii) the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the other conditions set forth in Annex A are hereto have not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicablebeen satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Progress Software Corp /Ma)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereofArticle VII, promptly then (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five two Business Days (as defined below) following after the date hereof)of such announcement, Merger Sub shall commence amend (within the meaning of Rule 14d-2 under 14d-2(a) of the Exchange Act) an offer the Offer to provide for the purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("outstanding shares of Company Common Stock") Stock at the Price Per Share subject to reduction only for any applicable federal withholding taxes. The initial expiration date of the Offer shall be the tenth Business Day from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms hereof. The Offer shall be made pursuant to a price Supplemental Offer to Purchase and related Letter of $20.25 per share, net Transmittal in form reasonably satisfactory to the seller Company and containing terms and conditions set forth in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")this Agreement. The obligation of Merger Sub to consummate the Offer and to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those (i) at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "Minimum Shares") being 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, any of which conditions may be waived by Merger Sub in its sole discretion. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to Merger Sub pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Koninklijke Philips Electronics Nv)
The Offer. (a) Provided Subject to the provisions of this Agreement, as promptly as practicable after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall not have been terminated amend the Offer to reflect this Agreement and amend the conditions to the Offer in accordance with Section 8.01 hereofherewith. The expiration date of the Offer shall be the tenth day, promptly other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (but in no event later than five Business Days (as defined below) following each a "BUSINESS DAY"), from and after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under Offer is amended to provide for the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, dated August 8, 2002 and contained in the Schedule TO, and a related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of Sub to accept for payment, and pay for, any Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by (the Company or "OFFER CONDITIONS") (any of which may be waived in whole or in part by Parent and Sub in their reasonable discretion, except that Parent and Sub shall not waive the Company Subsidiaries (as defined belowMinimum Condition without the consent of the Company) will be tendered pursuant and to the Offer; provided, however, that prior terms and conditions of this Agreement. Parent and Sub expressly reserve the right to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with modify the terms thereof or Section 2.09. Merger Sub will notof the Offer, except that, without the prior written consent of the Company, Parent and Sub shall not (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease reduce the number of shares of Company Common Stock sought pursuant subject to the Offer, ; (ii) reduce the Offer Price; (iii) impose additional amend or add to the Offer Conditions; (iv) except as provided in the next sentence, extend the Offer; (v) change the form of or reduce the consideration payable in the Offer; or (vi) amend any other term of the Offer in any manner adverse to the Company Stockholders. Notwithstanding the foregoing, Parent and Sub (i) shall extend the Offer for no longer than five Business Days at any one time, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; (ii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "COMMISSION") applicable to the Offer, ; (iii) may extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence; or (iv) change extend the Offer for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions to of the Offer, except that Merger Sub in its sole discretion may waive any of shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the conditions date on which Sub first accepts shares for payment pursuant to the Offer (but may not waive the condition that not less than 50.1% such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawnExchange Act, the "ACCEPTANCE DATE"), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basisthe "Shares") of common stock, $.01 par value $.25 per shareshare (the "Common Stock"), of the Company ("Company Common Stock"including the related Rights (as defined in Section 3.18 of this Agreement)) at a price of $20.25 12.85 per shareShare, 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"). The obligation , subject to (i) there being validly tendered and not withdrawn prior to the expiration of Merger Sub the Offer, that number of Shares which represents at least seventy-five percent (75%) of the Shares outstanding on a fully diluted basis (the "Minimum Condition"), (ii) the receipt by Parent of financing sufficient in amount to enable it and the Purchaser to consummate the Offer and the Merger (as hereinafter defined) and to refinance certain indebtedness for borrowed money of the Company and to pay related fees and expenses (the "Financing Condition") and (iii) the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms. As used herein, "fully diluted basis" takes into account issued and outstanding Shares and Shares subject to issuance under outstanding stock options and warrants. The obligations of the Purchaser to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject only to those the Minimum Condition, the Financing Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition, the Financing Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought, or amend any other condition of the Company Subsidiaries (as defined below) will be tendered pursuant Offer in any manner adverse to the Offerholders of the Shares without the written consent of the Company; provided, however, that prior if on the initial scheduled expiration date of the Offer, which shall be twenty business days after the date the Offer is commenced, all conditions to the Effective Time Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date for one or more periods totalling not more than thirty days. Notwithstanding the foregoing, (as defined below)i) Parent or the Purchaser can waive, shares of Company Common Stock held by in writing, the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, Minimum Condition without the prior written consent of the Company, (i) decrease or change the form of the consideration payable Company in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except event that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than at least 50.1% of the Company Common Stock Shares outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock are validly tendered and not withdrawn pursuant on or prior to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment Offer and pay for in (ii) the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Purchaser may extend the Offer from time to time until initial expiration date or any extension thereof, as the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent Purchaser reasonably deems necessary to comply with any legal or regulatory requirements, including but not limited to, the termination or expiration of any applicable waiting period requirements (including any extension or second request) periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder amended (the "HSR Act") ). The Purchaser shall, on the terms and (y) upon subject to the request prior satisfaction or waiver of the Companyconditions of the Offer, to a date no later than November 30, 1997 to the extent necessary accept for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company payment and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A pay for Shares tendered as soon as practicableit is legally permitted to do so under applicable law; provided, however, that if, immediately prior to the initial expiration date of the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer equal more than seventy-five percent (75%) of the outstanding Shares, but less than 90% of the outstanding Shares, the Purchaser may extend the Offer for a period not to exceed twenty business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer. Notwithstanding the foregoing, the Offer may not be extended beyond the date of termination of this Agreement pursuant to Article VII hereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Communications Central Inc)
The Offer. (a) Provided The Merger Agreement provides that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, the Purchaser will commence the Offer as promptly (as practicable but in no event later than five Business Days (as defined below) following business days after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")Merger Agreement. The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be Shares properly tendered pursuant to the Offer is subject to the satisfaction or waiver of the Minimum Condition and the other Offer Conditions. For a description of the Offer Conditions, see Section 15. Subject to the provisions of the Merger Agreement, Purchaser expressly reserves the right to modify the terms of the Offer; provided that, unless previously approved by the Company in writing, no change may be made that decreases the Offer Price, changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer, imposes conditions to the Offer in addition to the Offer Conditions or modifies the Offer Conditions (other than to waive any Offer Conditions as permitted by the Merger Agreement), amends, adds to or waives (except to the extent expressly permitted by the Merger Agreement) any other term of the Offer in a manner adverse to the holders of Shares, or waives or otherwise modifies the Minimum Condition so as to reduce the minimum number of shares that Purchaser will accept in the Offer to an amount constituting less than 66 2/3% of the aggregate Shares that are outstanding as of the consummation of the Offer. Notwithstanding the limitations set forth in the preceding paragraph, Purchaser may without the Company's consent, extend (and re-extend) the Offer (i) if any of the Offer Conditions are not satisfied on the scheduled or extended expiration date of the Offer to provide additional time to satisfy such conditions or (ii) for any period required by the rules or regulations of the SEC; provided, however, that prior to in no event shall Purchaser extend the Effective Time (as defined below)Offer beyond August 18, shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not2000, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basis) of common stockCommon Stock, par value $.25 .01 per shareshare (the "Shares"), of the Company ("Company Common Stock") (including the related rights (the "Company Rights") to purchase the Company's Series A Junior Participating Preferred Stock, par value $.01 per share ("Company Junior Preferred Stock"), pursuant to the Rights Agreement, dated as of December 18, 1996 (as amended, the "Company Rights Plan"), between the Company and the First National Bank of Boston, as rights agent), at a price of $20.25 44.25 per shareShare, 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 the conditions set forth in Annex A hereto. The obligation obligations of Merger Sub Purchaser to consummate commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered and not withdrawn immediately prior to the expiration of the Offer that number of Shares which represents at least a majority of the shares of Company Common Stock tendered pursuant thereto on a fully-diluted basis (provided that for the purposes of the foregoing calculation, Company Stock Options (as hereinafter defined) that are outstanding immediately prior to consummation of the Offer and are not exercisable at such time shall not be subject only taken into account) (the "Minimum Condition") and to those the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company or any "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex A hereto. Without the consent of the Company Subsidiaries Company, Purchaser shall not (as defined belowi) will be tendered pursuant reduce the number of Shares subject to the Offer; provided, however(ii) reduce the Offer Price, that prior (iii) modify or add to the Effective Time (as defined below), shares of Company Common Stock held by conditions set forth in Annex A hereto or otherwise amend the Company may be allocated, issued, delivered or transferred pursuant Offer in any manner adverse to the Company Stock Option Plan holders of the Shares, (iv) except as such term is defined provided in Section 2.09the next three sentences, extend the Offer, (v) change the form of consideration payable in accordance with the terms thereof Offer or Section 2.09(vi) waive the Minimum Condition. Merger Sub will notNotwithstanding the foregoing, Purchaser may, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until if at the earlier of the consummation initial expiration date of the Offer (which initial expiration date shall be 20 business days following commencement of the Offer) or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second requestthereof (I) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request any of the Company, conditions to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.Purchaser's
Appears in 1 contract
Samples: Agreement and Plan of Merger (SBC Communications Inc)
The Offer. (a) Provided that this Agreement shall not ------------ --------- have been terminated in accordance with Section 8.01 hereofArticle IX, promptly (but in unless otherwise agreed by Parent and the Company, no event later than five three Business Days following effectiveness of a Registration Statement on Form S-4 (as defined belowtogether with any amendments or supplements thereto, the "Offer Registration Statement") following the date hereof), Parent ---------------------------- shall cause Merger Sub shall to commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of to purchase all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("----- outstanding shares of Company Common Stock") Stock at a price for each share of Company Common Stock of (1) $20.25 per share29.60, net to the seller in cash cash, and (such price, or any such higher price as may 2) a fraction of a share of Parent Common Stock equal to the Exchange Ratio. The Offer shall be paid subject only to (1) the condition that there shall be validly tendered in accordance with the terms of the Offer, being referred prior to herein as the "Offer Price"). The obligation expiration date of Merger Sub to consummate the Offer and to accept for payment and to pay for any not withdrawn, a number of shares of Company Common Stock tendered pursuant thereto shall be subject only to those that, 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 (2) the other ----------------- conditions set forth in Annex A I hereto. The Company agrees Merger Sub shall have 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 no (A) the Minimum Condition may not be -------- waived or reduced to less than two-thirds of the shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, outstanding on a fully-diluted basis without the prior written consent of the Company, Company and (iB) decrease or no change may be made that changes the form of consideration payable in the Offer, decreases the consideration payable in the Offer, reduces the maximum number of shares of Company Common Stock to be purchased in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I or makes any other change which is adverse to the holders of Company Common Stock. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) for one or more periods (not in excess of 10 Business Days each) but in no event ending later than the Termination Date if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived, (ii) decrease 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 or (iii) for an aggregate period of not more than 10 Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to the Offer have been satisfied or waived, but the number of shares of Company Common Stock sought validly tendered and not withdrawn pursuant to the OfferOffer equals 80% or more, (iii) impose additional conditions to but less than 90%, of the Offer, (iv) change outstanding shares of Company Common Stock on a fully diluted basis. In the conditions to the Offer, except event that Merger Sub in its sole discretion may waive any is unable to consummate the Offer on the initial scheduled expiration date due to the failure of the conditions to the Offer (but may not waive to be satisfied or waived, Parent shall cause Merger Sub to, unless this Agreement is terminated pursuant to Article IX, extend the condition that not less than 50.1% of Offer and set a subsequent scheduled expiration date, and shall continue to so extend the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered Offer and not withdrawn), or (v) make any other change in set subsequent scheduled expiration dates until the Termination Date. Subject to the foregoing and upon the terms or and subject to the conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Offer, Parent shall cause Merger Sub agrees thatto, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for for, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of Offer. Parent will announce the Offer; provided, however, that Merger Sub shall not be obligated exact Exchange Ratio with respect to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares each share of Company Common StockStock that is to be exchanged in the Offer by 9:00 a.m., New York City time, on the second Trading Day immediately preceding the Acceptance Date. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, Parent will make such announcement by issuing a press release to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableDow Xxxxx News Service.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Georgia Pacific Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, promptly 7.1 and none of the events set forth in paragraphs (but in no event later than five Business Days a) through (as defined belowi) following of Annex A hereto shall have occurred or be existing (and shall not have been waived by the date hereofPurchaser), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act) an offer to purchase Act of 1934, as amended (the "OfferExchange Act")) at least 50.1% of all shares outstanding (on a fully diluted basis) of common stockthe Offer as promptly as reasonably practicable after the date hereof, par value $.25 per share, but in no event later than five business days after the public announcement of the Company ("Company Common Stock") at a price execution of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price")this Agreement. The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock Shares tendered pursuant thereto to the Offer shall be subject only to those the satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the then outstanding Shares on a fully diluted basis (the "Minimum Condition") and to the satisfaction or waiver by the Purchaser of the other conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock Shares held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to the Purchaser pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company no change may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, made without the prior written consent of the Company, (i) decrease or change Company which decreases the form of the consideration price per Share payable in the Offer, (ii) decrease reduces the maximum number of shares of Company Common Stock sought pursuant Shares to be purchased in the Offer, (iii) impose additional conditions changes the form of consideration to be paid in the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive modifies or amends any of the conditions set forth in Annex A hereto, imposes conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse addition to the holders of conditions set forth in Annex A hereto, waives the shares of Company Common Stock. Merger Sub agrees that, subject to Minimum Condition or makes other changes in the terms and conditions of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the Offer. Subject to the terms of the Offer and this AgreementAgreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, it the Purchaser will accept for payment and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer promptly after as soon as it is permitted to do so under applicable law. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 25 business days following the date of commencement of the Offer, if, at the scheduled expiration of the Offer; provided, however, that Merger Sub shall not be obligated any of the conditions to the Purchaser's obligation to accept for payment and to pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer Shares shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived or (ii) extend the Offer for any period required by Merger Sub as any rule, regulation or interpretation of any scheduled expiration datethe Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, Merger Sub may other than Rule 14e-5 promulgated under the Exchange Act. Unless the Company advises the Purchaser that it does not wish the Purchaser to extend the Offer, the Purchaser shall extend the Offer from time to time until the earlier of (A) the consummation date that is 30 days after the date on which the Regulatory Condition (as defined in Annex A) is satisfied or (B) the Drop Dead Date, in the event that, at the then-scheduled expiration date, all of the conditions of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A hereto have not been satisfied or waived as soon permitted by this Agreement. Any extension of the Offer pursuant to the preceding sentence of clause (i) of the second preceding sentence or this Section 1.1 shall not exceed the lesser of ten business days or such fewer number of days that the Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. The Purchaser shall provide a "subsequent offering period" (as practicablecontemplated by Rule 14d-11 under the Exchange Act) of not less than three business days following its acceptance for payment of Shares in the Offer. On or prior to the dates that the Purchaser becomes obligated to accept for payment and pay for Shares pursuant to the Offer, Alcoa shall provide or cause to be provided to the Purchaser the funds necessary to pay for all Shares that the Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement shall not have been terminated in accordance with Section 8.01 hereofand (ii) Merger Sub shall, promptly (as soon as practicable, but in no event later than five Business Days (as defined below) following after the date hereof)of such announcement, Merger Sub shall commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Exchange Act) an a tender offer (the “Offer”) to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("outstanding shares of Company Common Stock") Stock at a price of $20.25 10.00 per share, net to the seller in cash without interest (such pricethe “Price Per Share”), or subject to reduction only for any such higher price as may applicable withholding taxes. The Offer shall be paid made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in the Offer, being referred to herein as the "Offer Price")this Agreement. The obligation of Merger Sub to consummate the Offer and to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those (i) at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the “Minimum Shares”) being validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company its Subsidiaries (as defined below) will be tendered to Merger Sub pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Zhone Technologies Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (and in accordance with Section 8.01 hereof, promptly any event within five (but in no event later than five 5) Business Days (as defined belowDays) following after the date hereof), Merger Sub the Purchaser shall commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub to consummate the Offer and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 19761934, as amended, and the rules and regulations promulgated thereunder (the "HSR “Exchange Act"”), the Offer to purchase all the outstanding Shares at the Offer Price. The consummation of the Offer, and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date (A) that number of Shares which, together with the Contributed Shares and any other Shares then subject to the Contribution Agreement and the number of Shares (if any) then owned of record by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Shares then outstanding (determined on a fully diluted basis) and no less than a majority 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 upon the adoption of this Agreement and approval of the Merger, and (B) that number of Shares which represents at least a majority of the Shares then issued and outstanding, excluding from such calculation (x) the Contributed Shares and any other Shares then subject to the Contribution Agreement, (y) upon other Shares then owned of record or beneficially by any executive officer (within the request meaning of Section 16 under the Exchange Act) of the CompanyCompany (provided, that any Shares that may be deemed to a date no later than November be beneficially owned by the stockholder party to the Contribution Agreement pursuant to that certain Voting Agreement dated September 30, 1997 2005, by and between the Investor and the Xxxxxx X. Xxxxxxxx Revocable Trust u/a/d December 18, 2006, as amended or extended from time to time, shall not be deemed to be beneficially owned by such stockholder for purposes of this calculation), and (z) any Shares then beneficially owned by Parent or any of its direct or indirect Subsidiaries, including the extent necessary for IHK to satisfy Purchaser (collectively, the condition set forth in clause “Minimum Condition”); and (2ii) the satisfaction, or waiver by the Purchaser, of Annex A. The Company the other conditions and Merger Sub shall use commercially reasonable efforts to satisfy the conditions requirements set forth in Annex A as soon as practicableI. The conditions and requirements to the Offer set forth in Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition and, other than the Minimum Condition and the Governmental Approval Condition, may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.1.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Global Traffic Network, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with pursuant to Section 8.01 10.1 hereof, as promptly (as reasonably practicable, but in no event later than five fifteen Business Days (as defined below) following the date hereofpublic 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), Merger Sub Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an a tender offer (as it may be amended from time to time as permitted by this Agreement, the "OFFER") to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("shares of Company Common Stock") Stock issued and outstanding at a price of U.S. $20.25 35.00 per share, net to the seller in cash (such price, or any such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "Offer PriceOFFER PRICE"). The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those conditions set forth in Annex A hereto. The Company agrees the condition that no shares of Company Common Stock held there shall be validly tendered (other than by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09guaranteed delivery where actual delivery has not occurred) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease prior to the expiration date of the Offer and not withdrawn, a number of shares of Company Common Stock sought pursuant to that, together with the Offershares of Company Common Stock then owned by Parent and/or Purchaser, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any represents at least a majority of the conditions to the Offer (but may not waive the condition that not less than 50.1% shares of the 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 securities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the time of determination) (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 have been validly tendered be made by means of an offer to purchase (the "OFFER TO PURCHASE") and not withdrawn)the related letter of transmittal, or (v) make any other change 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 terms 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 conditions subject to any financing condition." Without limiting the foregoing, effective upon Consummation of the Offer which is adverse Offer, the holder of such Company Common Stock will sell and assign to the holders Purchaser all right, title and interest in and to all of the shares of Company Common Stock. Merger Sub agrees thatStock tendered (including, subject but not limited to, such holder's right to the terms any and conditions of the Offer all dividends and this Agreementdistributions, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; providedif any, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commencedwith a record date before, and may not be a payment date after, the scheduled or extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basis) of common stockCommon Stock, par value $.25 .01 per shareshare (the "Shares"), of the Company ("Company Common Stock") (including the related rights (the "Company Rights") to purchase the Company's Series A Junior Participating Preferred Stock, par value $.01 per share ("Company Junior Preferred Stock"), pursuant to the Rights Agreement, dated as of December 18, 1996 (as amended, the "Company Rights Plan"), between the Company and the First National Bank of Boston, as rights agent), at a price of $20.25 44.25 per shareShare, 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 the conditions set forth in Annex A hereto. The obligation obligations of Merger Sub Purchaser to consummate commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered and not withdrawn immediately prior to the expiration of the Offer that number of Shares which represents at least a majority of the shares of Company Common Stock tendered pursuant thereto on a fully- diluted basis (provided that for the purposes of the foregoing calculation, Company Stock Options (as hereinafter defined) that are outstanding immediately prior to consummation of the Offer and are not exercisable at such time shall not be subject only taken into account) (the "Minimum Condition") and to those the other conditions set forth in Annex A hereto. The Company agrees that no shares Offer shall be made by means of Company Common Stock held by an offer to purchase (the Company or any "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex A hereto. Without the consent of the Company Subsidiaries Company, Purchaser shall not (as defined belowi) will be tendered pursuant reduce the number of Shares subject to the Offer; provided, however(ii) reduce the Offer Price, that prior (iii) modify or add to the Effective Time (as defined below), shares of Company Common Stock held by conditions set forth in Annex A hereto or otherwise amend the Company may be allocated, issued, delivered or transferred pursuant Offer in any manner adverse to the Company Stock Option Plan holders of the Shares, (iv) except as such term is defined provided in Section 2.09the next three sentences, extend the Offer, (v) change the form of consideration payable in accordance with the terms thereof Offer or Section 2.09(vi) waive the Minimum Condition. Merger Sub will notNotwithstanding the foregoing, Purchaser may, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until if at the earlier initial expiration date of the consummation Offer (which initial expiration date shall be 20 business days following commencement of the Offer) or any extension thereof (I) any of the conditions to Purchaser's obligation to purchase Shares set forth in clauses (i) or (iii) of the first paragraph of Annex A or paragraph (a) of Annex A shall not be satisfied or waived, until such time as such conditions are satisfied or waived but not beyond 60 days after the date of the commencement of the Offer or 30 Business Days after (II) the date hereofCompany or any person that (directly or indirectly) is more than 10% owned by, and shall extend or controlled by or is under common control with, the Offer (x) to the extent necessary to comply Company does not operate in a manner consistent with the waiting period requirements (including any extension or second request) under provisions of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Communications Act of 19761934, as amended, and the rules and regulations thereunder amended (the "HSR Communications Act") and ), applicable to a "Xxxx Operating Company" or its "affiliates" that does not have authority to provide non-incidental interLATA telecommunications services originating in any state in which the Company or any such person does business as of such date (y) upon provided, however, that this extension right may not be exercised by Parent or Purchaser if the request failure of the Company or any such person to be so operating results from any failure by Parent or Purchaser to perform any of its obligations under this Agreement), until 15 days after the previously-scheduled expiration date; provided, however, that Purchaser may, without the consent of the Company, extend the Offer for not more than an additional 60 days beyond such initial 60-day extension period if (a) the Offer shall not have been consummated as a direct result of the failure of the conditions set forth in clauses (i) or (iii) of the first paragraph of Annex A to a date no later than November 30have been satisfied, 1997 (b) with respect to the extent necessary for IHK to satisfy the condition set forth in such clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts i), Purchaser is endeavoring in good faith to satisfy such conditions and (c) the reason that such conditions set forth in Annex A as soon as practicable.have not been satisfied is not due to a breach by Purchaser of its obligations under this Agreement, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or positions of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer but not beyond 60 days after the date of the commencement of the Offer. The terms "affiliate," "own" and "
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sterling Commerce Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, promptly (but in no event later than five Business Days (as defined below) following the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("Company Common Stock") at a price of $20.25 per share, net to the seller in cash (such price, or any such higher price as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Merger Sub Subsidiary to, and Buyer to consummate cause Merger Subsidiary to, commence the Offer and to accept for payment payment, and to pay for for, any shares of Company Common Stock and all Shares tendered pursuant thereto to the Offer shall be subject only to those the conditions set forth in Annex A hereto. The Company agrees that no shares of Company Common Stock held by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant I hereto and to the Offerterms and conditions of this Agreement; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will Subsidiary shall not, without the prior Company's written consent consent, waive the Minimum Condition (as defined in Annex I hereto). Merger Subsidiary expressly reserves the right to modify the terms of the Offer; provided that, without the Company's written consent, Merger Subsidiary shall not (i) decrease or change reduce the form number of the consideration payable Shares which Merger Subsidiary is offering to purchase in the Offer, (ii) decrease reduce the number of shares of Company Common Stock sought pursuant to the OfferOffer Price, (iii) impose additional conditions modify or add to the Offerconditions set forth in Annex I hereto, (iv) change the conditions form of consideration payable in the Offer or (v) otherwise amend or modify the Offer in any manner adverse to the Offer, except that Merger Sub in its sole discretion may waive any holders of the conditions to Shares. Notwithstanding the Offer (but may foregoing, if on any scheduled expiration date the number of Shares that have been physically tendered and not waive the condition that not less withdrawn are more than 50.150% of the Company Common Stock Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company on a fully diluted basis, Merger Subsidiary may extend the Offer for up to 10 additional business days from the date that all conditions to the Offer (other than the Minimum Condition) shall first have been validly tendered and not withdrawnsatisfied, so long as Merger Subsidiary irrevocably waives the satisfaction of any condition set forth in Annex A which relates to the 1 6 occurrence of a Material Adverse Effect on the Company (as defined in Section 4.1). Further, Merger Subsidiary may extend the Offer beyond any scheduled expiration date up to the Outside Termination Date (as defined in Section 10.1) if at the initial expiration date of the Offer, or any extension thereof, the conditions in clauses (va) make any other change in the terms and (b) to Annex I hereto are not satisfied or conditions of the Offer which is adverse to the holders of the shares of Company Common Stockwaived. Merger Sub agrees that, subject Subject to the terms and conditions of the Offer Offer, Merger Subsidiary shall, and this AgreementBuyer shall cause Merger Subsidiary to, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn. (b) On the date of commencement of the Offer, Buyer and Merger Subsidiary shall file with the Securities and Exchange Commission (the "SEC"), a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which shall contain an offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto, collectively, the "Offer Documents") and promptly thereafter shall disseminate the Offer Documents to the stockholders of the Company. Buyer, Merger Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect; providedand each of Buyer and Merger Subsidiary further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, howeverin each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with the applicable authorities or disseminated to the Company's stockholders. Buyer and Merger Subsidiary agree to provide the Company and its counsel any comments Buyer, that Merger Sub Subsidiary or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall not provide the Company and its counsel an opportunity to participate, including by way of discussion with the SEC or its staff, in the response of Buyer and/or Merger Subsidiary to such comments. (c) Buyer shall provide or cause to be obligated provided to Merger Subsidiary on a timely basis the funds necessary to accept for payment payment, and pay for, any Shares that Merger Subsidiary becomes obligated to pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, pursuant to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.Merger. SECTION 1.2
Appears in 1 contract
Samples: Iii 5 Agreement and Plan of Merger Agreement and Plan of Merger (Catalog Acquisition Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with pursuant to Section 8.01 10.1 hereof, as promptly (as reasonably practicable, but in no event later than five fifteen Business Days (as defined below) following the date hereofpublic 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), Merger Sub Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an a tender offer (as it may be amended from time to time as permitted by this Agreement, the "OFFER") to purchase (the "Offer") at least 50.1% of all shares outstanding (on a fully diluted basis) of common stock, par value $.25 per share, of the Company ("shares of Company Common Stock") Stock issued and outstanding at a price of U.S. $20.25 35.00 per share, net to the seller in cash (such price, or any such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "Offer PriceOFFER PRICE"). The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto to the Offer shall be subject only to those conditions set forth in Annex A hereto. The Company agrees the condition that no shares of Company Common Stock held there shall be validly tendered (other than by the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09guaranteed delivery where actual delivery has not occurred) in accordance with the terms thereof 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 a majority of the shares of Company Common Stock outstanding on a fully diluted basis (after giving effect to the conversion or Section 2.09exercise of all outstanding options, warrants and other rights to acquire, and securities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the time of determination) (the "MINIMUM CONDITION") and to the satisfaction or waiver by Purchaser as permitted hereunder of the other conditions set forth in Annex I hereto. Merger Sub 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 notstate 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 Consummation of the Offer, the holder of such Company Common Stock will sell and assign to Purchaser all right, title and interest in and to all of the shares of Company Common Stock tendered (including, but not limited to, such holder's right to any and all dividends and distributions, if any, 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 and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, which consent must be expressly authorized by the board of directors of the Company (the "COMPANY'S BOARD OF DIRECTORS"), (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and Minimum Condition may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied waived or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub may extend the Offer from time to time until the earlier of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Puerto Rican Cement Co Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 hereof, As promptly as practicable (but in no event later than five Business Days (as defined below) following business days after the date public announcement of the execution hereof), Merger Sub the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an a tender offer to purchase (the "Offer") at least 50.1% for all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, Common Stock of the par value of $.25 1.00 per share, share of the Company (the "Company Common Stock"), and all of the outstanding shares of Class A Stock of the par value of $1.00 per share of the Company (the "Class A Stock") (the shares of Common Stock and the shares of Class A Stock are sometimes referred to together as the "Shares"), at a price of $20.25 45.50 per shareShare, 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 expira- tion of the Offer, that number of Shares which represents at the time of acceptance for payment of any Shares pursuant to the Offer (the "Share Purchase Date") at least (i) two-thirds of the outstanding Shares (deter- mined on a fully diluted basis) and (ii) Shares entitled to cast at least two-thirds of the votes (counting the Class A Stock as entitled to cast 1/10th of a vote per share) that may be cast by all holders of Shares on the Merger (as defined in Section 1.4) (determined on a fully diluted basis)(the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consum- mate the Offer in accordance with its terms ("fully diluted basis" means issued and outstanding Shares and Shares subject to issuance at the discretion of the holders under stock options or other stock based awards outstanding at the Share Purchase Date, excluding any portions of such options or awards surrendered to the Company pursuant to Section 2.4 of this Agreement). The obligation of Merger Sub to consummate the Offer and Purchaser to accept for payment and to pay for any shares Shares validly tendered on or prior to the expiration of Company Common Stock tendered pursuant thereto the Offer and not withdrawn shall be subject sub- ject only to those the Minimum Condition and the other condi- tions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agree- ment, the Minimum Condition and the other conditions set forth in Annex A hereto. The Company agrees that no shares Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Company Common Stock held by the Company Shares sought, or amend any other condition of the Company Subsidiaries (as defined below) will be tendered pursuant to Offer without the Offerwrit- ten consent of the Company; provided, however, that prior to if on the Effective Time (as defined below), shares initial scheduled expiration date of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease which shall be 30 business days after the number date on which the execution of shares of Company Common Stock sought pursuant this Agreement is announced to the Offerpublic (it being understood that for such purpose Christmas Eve and New Years Eve shall not be deemed to be "business days"), (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the all conditions to the Offer (but may shall not waive have been satisfied or waived, the condition that not less than 50.1% Purchaser may, from time to time, in its sole discretion, extend the expiration date for one or more periods. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) make any other change in the terms or conditions of the Offer which Offer, accept for payment the Shares tendered as soon as it is adverse legally permitted to do so under applicable law and pay for such Shares promptly; provided, however, that if, immediately prior to the holders of the shares of Company Common Stock. Merger Sub agrees that, subject to the terms and conditions initial expiration date of the Offer and this Agreement(as it may be ex- tended), it will accept for payment and pay for all shares of Company Common Stock validly the Shares tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more equal less than 50.190% of the outstanding shares of Company each of the Common Stock and the Class A Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Purchaser may extend the Offer from time for one or more peri- ods not to time until exceed seven business days in the earlier aggregate, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the consummation of the Offer or 30 Business Days after the date hereof, and shall extend the Offer (x) to the extent necessary to comply with the waiting period requirements (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act") and (y) upon the request of the Company, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy the condition set forth in clause (2) of Annex A. The Company and Merger Sub shall use commercially reasonable efforts to satisfy the conditions set forth in Annex A as soon as practicableOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.01 a failure to satisfy any of the conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, promptly (but in no event later than five Business Days (as defined below) business days following the date hereof)public announcement of the terms of this Agreement, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase (the "Offer") at least 50.1% to purchase all of all the outstanding shares outstanding (on a fully diluted basis) of common stock, par value $.25 .01 per shareshare (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company ("Company Common Stock") at a price of $20.25 30.50 per shareShare (including such associated Rights), net to the seller in cash cash. 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 and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such price, or any such higher price as may be paid in the Offer, total number of outstanding Shares being hereinafter referred to herein as the "Offer PriceFully Diluted Shares"). The obligation of Merger Sub to consummate ) (the Offer "Minimum Condition") and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant thereto shall be subject only to those the other conditions set forth in Annex A I hereto. The Company agrees that no shares of Company Common Stock held by Parent and Merger Subsidiary expressly reserve the Company or any of the Company Subsidiaries (as defined below) will be tendered pursuant right to the Offer; provided, however, that prior to the Effective Time (as defined below), shares of Company Common Stock held by the Company may be allocated, issued, delivered or transferred pursuant to the Company Stock Option Plan (as such term is defined in Section 2.09) in accordance with the terms thereof or Section 2.09. Merger Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Merger Sub in its sole discretion may waive any of the conditions to the Offer (but may not waive the condition that not less than 50.1% of the Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn), or (v) to make any other change in the terms or conditions of the Offer; provided that, without the written consent of the Company, no change may be made which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, changes or waives the Minimum Condition, extends the Offer (except as set forth in the following sentence), or makes any other change to any condition to the Offer set forth in Annex I which is adverse to the holders of the shares of Company Common StockShares. Merger Sub agrees that, subject Subject to the terms and conditions of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, it will Merger Subsidiary shall accept for payment and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after expiration of the Offeracceptance; provided, however, provided that Merger Sub shall not be obligated to accept for payment and pay for in the Offer, in the aggregate, more than 50.1% of the outstanding shares of Company Common Stock. The Offer shall initially provide that it shall expire 20 Business Days after it is commenced, and may not be extended except as provided below. If the conditions set forth in Annex A are not satisfied or, to the extent permitted by this Agreement, waived by Merger Sub as of any scheduled expiration date, Merger Sub Subsidiary may extend the Offer from time to time until if, at the earlier of the consummation scheduled expiration date of the Offer or 30 Business Days after any extension thereof any of the date hereofconditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or waived, and shall Merger Subsidiary may extend the Offer for a further period of time of not more than 20 business days to meet the objective (x) which is not a condition to the extent necessary to comply Offer) that there be validly tendered, in accordance with the waiting period requirements terms of the Offer, prior to the expiration date of the Offer (including any extension or second request) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR Act"so extended) and (y) upon the request not withdrawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the CompanyFully Diluted Shares. Subject to Section 9.1, to a date no later than November 30, 1997 to the extent necessary for IHK to satisfy if the condition set forth in clause (2ii) of the first paragraph of Annex A. The Company I is not satisfied as of the date the Offer would otherwise have expired, Merger Subsidiary shall extend the Offer until the earlier of (i) the date that is 30 days after the first scheduled expiration date and Merger Sub shall use commercially reasonable efforts to satisfy (ii) the conditions date the condition set forth in Annex A as soon as practicable.clause (ii) of the first paragraph
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Associates International Inc)
