The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10, and in any event, within five (5) business days thereafter, the 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(the “Exchange Act”)) the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (DG FastChannel, Inc), Agreement and Plan of Merger and Reorganization (New 360), Agreement and Plan of Merger and Reorganization (Point 360)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) 9.01 and that none of the events or conditions set forth in Annex I (other than paragraphs (f) and (i)) A shall have occurred and be continuing existing and shall not have been waived by Parent (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10, and conditions set forth in any event, within five (5) business days thereafterAnnex A, the “Tender Offer Conditions”), Purchaser shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer, subject Offer as promptly as practicable and in any event within ten (10) business days after the date hereof. The obligation of Purchaser to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all payment Shares validly tendered pursuant to the Offer as soon as practicable after and to pay the Per Share Amount for each such tendered and not subsequently withdrawn Share shall be subject only to the Tender Offer Conditions. Purchaser is legally permitted expressly reserves the right to do so under applicable lawwaive any such condition, to increase the Per Share Amount payable in the Offer, and to make any other changes to the terms and conditions of the Offer; provided, however, that without the initial expiration date prior written consent of the Offer shall be the date that is twenty Company (20i) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth (as defined in Annex I. The Offer shall A) may not be waived and (ii) no change may be made by means of an offer to exchange that (the “Offer to Exchange”A) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in the Offer or reduce Offer, (C) reduces the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: Offer, (xD) if on the Initial Expiration Date (as it may be extended), all imposes conditions to the Offer shall not have been satisfied in addition to those set forth in Annex A hereto, or waived, (E) amends the Purchaser may, from time to time, conditions set forth in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, Annex A hereto in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer manner materially adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent holders of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofShares.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Radyne Corp), Agreement and Plan of Merger (Comtech Telecommunications Corp /De/), Agreement and Plan of Merger (Comtech Telecommunications Corp /De/)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of Article VIII and subject to the events conditions set forth in Annex I (other than paragraphs including that none of the events or conditions set forth therein (f) and (i)the "Exchange Offer Conditions") shall have occurred and be continuing existing and (iii) the Company shall have complied with its applicable obligations under Section 1.2not waived by Parent), as promptly as practicable after the effectiveness of the Form 10Merger Sub shall, and in any eventParent shall cause Merger Sub to, within five (5) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act) the Offer to purchase all of 1934the issued and outstanding Company Common Shares (including any and all Rights) as promptly as reasonably practicable, as amendedbut in no event more than twenty (20) Business Days following the first public announcement by Parent and the Company of the execution of this Agreement, and shall take the rules and regulations promulgated thereunder (actions specified in Section 1.1(c). Each Company Common Share accepted by Merger Sub pursuant to the “Exchange Act”)) Offer shall be exchanged for the Offer, subject right to receive from Parent (i) there being validly tendered in a fraction of a share of Parent Common Stock (the Offer "Stock Portion") determined by dividing (in y) the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned quotient obtained by dividing $3.5 million by the PurchaserBase Price, represents at least a majority by (z) the Fully Diluted Common Share Number, with cash paid in lieu of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectivelyfractional shares, the “Minimum Condition”) as provided below and (ii) an amount in cash (the satisfaction "Cash Portion"), determined by dividing (y) the quotient obtained by dividing the Company's Net Cash as reflected on the Reference Balance Sheet, by (z) the Fully Diluted Common Share Number, rounded to the nearest whole cent, with .5 rounded up. The Stock Portion and the Cash Portion, or waiver such greater aggregate amount per share paid by Merger Sub in the Offer, are referred to herein as the "Offer Price." No certificate or scrip representing fractional shares of Parent Common Stock shall be issued pursuant to the Offer. All fractional shares of Parent Common Stock that a Company Stockholder would otherwise be entitled to receive as a result of the other conditions Offer shall be aggregated, and requirements set forth if a fractional share results from such aggregation, such holder shall be entitled to receive, in Annex I. Subject lieu thereof, an amount in cash determined by multiplying (i) the Base Price by (ii) the fraction of a share of Parent Common Stock to the prior satisfaction or waiver by the Purchaser which such holder would otherwise have been entitled. The obligation of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and Merger Sub to accept for exchange, payment and exchange the Offer Consideration for, all pay for any Company Common Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent satisfaction of the CompanyExchange Offer Conditions, this Agreement and applicable Laws. For The Company agrees that any Company Common Shares held by the avoidance of doubt: (x) if on the Initial Expiration Date (as it may Company will not be extended), all conditions tendered pursuant to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Promotions Com Inc), Agreement and Plan of Merger (Ivillage Inc), Agreement and Plan of Merger (Ivillage Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) hereto, Parent shall have occurred and be continuing and (iii) the Company or shall have complied with its applicable obligations under Section 1.2cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the effectiveness initial public announcement of the Form 10Offer, and in any event, within five (5) business days thereafter, the 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 amended (the “"Exchange Act”")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there being shall be validly tendered in accordance with the terms of the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer that and not withdrawn a number of Shares which, together with the any Shares then beneficially owned by the PurchaserParent or Sub, represents at least a majority ninety (90%) percent of the Shares outstanding on a fully fully-diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”) and "), (ii) the satisfaction receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or waiver of such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions and requirements set forth in Annex I. Subject I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the prior satisfaction or Minimum Condition, provided that no such waiver by the Purchaser of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the other conditions and requirements set forth price per Share payable in Annex Ithe Offer, the Purchaser shall consummate to extend the Offer and to make any other changes in accordance with its the terms and accept for exchange, and exchange conditions of the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable lawOffer; provided, however, that unless -------- ------- previously approved by the initial expiration date Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser in addition to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements those set forth in Annex I. The Offer shall be made by means of an offer I hereto, (iv) change the conditions to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Considerationin any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or reduce the maximum number (vii) amend any other term of Shares to be purchased in the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the prior written consent of the Company. For , (i) extend the avoidance Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of doubt: the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (x) if on including, with respect to the Initial Expiration Date Financing Condition, the consummation of the sale of the Senior Notes (as it may be extendeddefined in Section 4.2(d), all conditions to the Offer ) shall not have been be satisfied or waived, the Purchaser may, from until such time to time, in its sole discretion, extend the Initial Expiration Date, for as such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one conditions are satisfied or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase waived and (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 extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consentOffer. The Purchaser limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except applicable in the event that this Agreement is terminated pursuant to Section 8.18.1(d) of this Agreement. If Subject to the terms and conditions of the Offer is terminated or and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn by the Purchaser, or this Agreement is terminated prior pursuant to the exchange Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including subject to compliance with Rule 14e-1(c) under the Exchange Agent, acting on behalf Act. Subject to the terms and conditions of the PurchaserOffer, Parent and Sub will each use its reasonable best efforts to return take, or cause to be taken, all tendered Shares actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the registered holders thereofOffer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Bertuccis Inc), Agreement and Plan of Merger (Bertuccis of White Marsh Inc), Agreement and Plan of Merger (Ne Restaurant Co Inc)
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) hereto, the Company shall have complied with its applicable obligations commence, within the meaning of Rule 13e-4(a)(4) under Section 1.2the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), as promptly as practicable after the effectiveness date hereof, but in no event later than five business days (as such term is defined in Rule 14d-1 under the Exchange Act, a "BUSINESS DAY") following the public announcement of the Form 10, and in any event, within five (5) business days thereafterterms of this Agreement, the Purchaser shall commence (within Offer to purchase all of the meaning outstanding Shares at a price of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder $14.25 per Share (the “Exchange Act”"OFFER PRICE")) , net to the sellers in cash, subject to any amounts required to be withheld under applicable federal, state, local or foreign income tax regulations. Subject to the extension of the Offer as provided below, the obligation of the Company to commence the Offer, to consummate the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn shall be subject to only to: (i) the condition that there being shall be validly tendered in accordance with the terms of the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer that and not withdrawn a number of Shares which, together with the Shares then beneficially owned by the Purchaser, which represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively"MINIMUM CONDITION"), the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex II hereto. At Buyer's request, the Purchaser Company shall consummate increase the price per Share payable in the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant make such other changes to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; Buyer may request, provided, however, that the initial expiration date of the Offer shall Company will not be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser required to accept for exchange, and to exchange the Offer Consideration for, make any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not changes which decrease the Offer Considerationprice per Share payable in the Offer, which change the form of consideration payable to be paid in the Offer or Offer, which reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended)Offer, all which impose conditions to the Offer in addition to those set forth in Annex I hereto or which broaden the scope of such conditions. The Company shall not have been satisfied make no other changes to the Offer or waivedwaive any conditions to the Offer or take any other action, including, without limitation, notice of acceptance of tendered Shares to the Purchaser mayDepositary, with respect to the Offer without Buyer's prior written consent. The Offer will remain open (unless the Company, at the written request of Buyer, terminates the Offer upon the occurrence of an event in Annex I) for a period of twenty Business Days from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as commencement of the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” Offer in accordance with Rule 14d-11 applicable law (the "EXPIRATION DATE") unless the Company, at the request of Buyer, extends the period of time for which the Offer is open as may be permitted or required by this Agreement, or applicable laws in which case the term "Expiration Date" will mean the latest time and date at which the Offer as so extended by the Company expires. Notwithstanding the foregoing, the Company shall extend the Offer at any time up to the Outside Termination Date (as defined in Section 10.01) for one or more periods of not more than an aggregate of 10 Business Days, if at the initial expiration date of the Offer, or any extension thereof, the condition to the Offer requiring the expiration or termination of any applicable waiting periods under the Exchange HSR Act (as defined in Section 4.03) is not satisfied or required. In addition, the Offer Price may be increased and (z) the Purchaser mayOffer may be extended to the extent required by law in connection with such increase in each case only at the request of Buyer. The Company shall, in its sole discretionat Buyer's request, extend the Offer beyond the initial Expiration Date for any reason on one or more occasions for an aggregate a period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence up to 10 Business Days, if, on the date of such expiration dateextension, there have not been tendered (and not withdrawn) at least ninety percent (more than 85% but less than 90%) % of the outstanding Shares on a fully diluted basisbasis have been tendered. The Purchaser may (i) increase Subject to the terms and conditions of the Offer Consideration and extend the Offer subject to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent closing of the CompanyStock Purchase as set forth in Article II herein, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the PurchaserCompany shall pay, or this Agreement is terminated prior to the exchange as promptly as practicable after expiration of Shares in the Offer, for all Shares validly tendered and not withdrawn. Notwithstanding the Purchaser foregoing, the Company shall promptly return, and not be required to consummate the Offer or pay the Offer Price for the Shares tendered unless it shall cause any depository or exchange agent, including have received the Exchange Agent, acting on behalf proceeds from the sale of the Purchaser, Buyer Shares and the Financing or other funds arranged for by Buyer in an amount which shall be equal to return all tendered or greater than the Offer Price multiplied by the number of Shares to the registered holders thereoftendered.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Hilite Industries Inc), Agreement and Plan of Merger (Hilite Mergeco Inc), Agreement and Plan of Merger (Maher Donald M)
The Offer. (a) Provided that (i) this Agreement shall not have been --------- terminated in accordance with Section 8.1, (ii) 7.1 and none of the events set forth in Annex I A hereto (other than paragraphs the events set forth in clause (fg) and (i)thereof) shall have occurred and or be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2continuing, as promptly as practicable after (but in no event later than five business days from the effectiveness public announcement of the Form 10execution hereof), and in any event, within five (5) business days thereafter, the Purchaser Merger Sub 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 amended (the “Exchange Act”"EXCHANGE ACT")) an offer (the "OFFER") to purchase for cash all of the issued and outstanding shares of Common Stock, par value $.01 per share (each a "SHARE" and, collectively, the "SHARES" or the "COMPANY COMMON STOCK"), of the Company, at a price of $55.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, the "OFFER PRICE"). Merger Sub shall, on the terms and subject only to the prior satisfaction or waiver of the conditions of the Offer set forth in Annex A hereto (except that the Minimum Condition (as defined herein) may not be waived by Parent or Merger Sub without the consent of the Company), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of Merger Sub to accept for payment and to pay for any and all Shares validly tendered on or before the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to before the expiration of the Offer Offer, that number of Shares which, together with the any Shares then beneficially owned by the PurchaserParent or Merger Sub, represents represent at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”"MINIMUM CONDITION") and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to A hereto (the prior satisfaction or waiver by the Purchaser of "ADDITIONAL CONDITIONS" and, together with the Minimum Condition and the other conditions and requirements set forth in Annex ICondition, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”"OFFER CONDITIONS"). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange purchase (the “Offer to Exchange”"OFFER TO PURCHASE") that contains containing the terms set forth in this Agreement, Agreement and the Offer Conditions. Merger Sub shall not amend or waive the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, or amend any other term or condition of the Offer in any manner adverse to be purchased the holders of the Shares or, except as provided in the next two sentences, extend the expiration date of the Offer without the prior written consent of the Company. For Notwithstanding the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended)foregoing, all conditions to the Offer shall not have been satisfied or waived, the Purchaser Merger Sub may, from time to time, in its sole discretion, extend without the Initial Expiration Date, for such period as consent of the Purchaser may determineCompany, (yi) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten 20 days, if at the scheduled or extended expiration date of the Offer, the Minimum Condition shall not be satisfied, (10ii) business days extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) August 31, 1998; provided, however, that notwithstanding the foregoing, if all Offer Conditions -------- ------- other than the HSR Condition (as defined in Annex A hereto) have been satisfied or waived, Merger Sub may, if such HSR Condition is reasonably capable of being satisfied, extend the Offer without the consent of the Company until October 31, 1998 (either such date, as applicable, being the "EXTENSION DATE"), if at the scheduled or extended expiration date of the Offer any of the Offer Conditions (other than the Minimum Condition) which are reasonably capable of being satisfied shall not be satisfied or waived, (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iv) extend the Offer on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (xi), (ii) or (iii) of this sentence ifsentence, if on such expiration date, date there shall not have not been tendered (and not withdrawn) at least ninety percent (90%) % of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase ; provided, however, that if the Offer Consideration is extended pursuant to this clause (iv) -------- ------- hereof, the conditions to the Offer set forth in clauses (b), (f) or (h) of Annex A hereto shall be deemed satisfied at all times thereafter. Notwithstanding the foregoing, if requested by the Company, Merger Sub shall, and Parent agrees to cause Merger Sub to, extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) the Extension Date if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all Offer Conditions have not been satisfied or waived and all such conditions are reasonably capable of being satisfied. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Triangle Pacific Corp), Agreement and Plan of Merger (Armstrong World Industries Inc), Agreement and Plan of Merger (Armstrong World Industries Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) 8.01 hereof and that none of the events set forth in Annex I clause (other than paragraphs (f2) and (i)) of Exhibit A hereto shall have occurred and or be continuing and existing, Parent shall cause Sub promptly (iii) but in no event later than five business days following the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness public announcement of the Form 10, and in any event, within five (5terms of this Agreement) business days thereafter, the Purchaser shall to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "EXCHANGE ACT")) an offer to purchase all outstanding shares of common stock of the Company, par value $.01 per share (the "SHARES"), at a price of $5.25 per Share, net to the seller in cash (the "OFFER"). Subject to the satisfaction of the Offer Conditions (as defined below) and the terms and conditions of this Agreement, Sub shall, and the rules Parent shall cause Sub to, accept for payment and regulations promulgated thereunder (the “Exchange Act”)) the Offer, subject to (i) there being pay for Shares validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of Sub to consummate the Purchaser Offer and to accept for exchange, payment and to exchange the Offer Consideration for, pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn pursuant thereto shall be subject to only those conditions set forth in Exhibit A hereto (the "OFFER CONDITIONS"), which may be asserted by Parent or Sub regardless of the circumstances giving rise to any such condition, or (except as set forth below with respect to the Minimum Condition (as defined in Exhibit A)) waived by Parent or Sub, in whole or in part, at any time and from time to time in their sole discretion. The Company agrees that no Shares held by the other conditions and requirements set forth Company or any of its Subsidiaries (as defined in Annex I. The Offer shall Section 9.11 hereof) will be made by means of an offer tendered to exchange (Sub pursuant to the “Offer to Exchange”) that contains the terms set forth in this AgreementOffer. Sub will not, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For , (i) decrease or change the avoidance form of doubt: the consideration payable in the Offer, (xii) if on decrease the Initial Expiration Date number of Shares sought pursuant to the Offer (except as it may be extendedotherwise set forth in Section 1.01(c) hereof), all (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer shall not have been (provided, that Parent or Sub in their sole discretion may waive any of the conditions to the Offer other than the Minimum 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. If the conditions set forth in Exhibit A are satisfied or waivedas of any scheduled expiration date of the Offer, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser Sub may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than up to ten (10) business days beyond in the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence ifaggregate, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to for a longer period with the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1Company or as required by law. If the Offer is terminated or withdrawn by the Purchaserconditions set forth in Exhibit A are not satisfied or, or this Agreement is terminated prior to the exchange extent permitted by this Agreement, waived by Parent or Sub as of Shares any scheduled expiration date, Sub may extend the Offer from time to time (but not beyond the date that is fifty business days from the date hereof) and, in any event, upon the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf written request of the PurchaserCompany, Sub will extend the Offer from time to return time until the earlier of the consummation of the Offer or forty business days from the date hereof (provided, that Sub shall not be obligated to make any such extension if (i) it reasonably determines that all tendered Shares such conditions are not likely to be satisfied by such date or (ii) it shall then have the registered holders thereofright to terminate this Agreement, pursuant to its terms).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Dep Corp), Agreement and Plan of Merger (Dep Corp), Agreement and Plan of Merger (Henkel Acquisition Corp Ii)
The Offer. (a) Provided that (i) Subject to the provisions of this Agreement and provided that nothing shall not have been terminated occurred that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex ANNEX I (other than paragraphs (f) and (i)) hereto, Parent shall have occurred and be continuing and (iii) cause the Company shall have complied with its applicable obligations under Section 1.2Purchaser to, as promptly as reasonably practicable after the effectiveness of the Form 10date hereof, and but in any event, within no event later than five (5) business days thereafterfollowing the initial public announcement of the Purchaser's intention to commence the Offer, the Purchaser 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 promulgated thereunder amended (the “"Exchange Act”")) ), the OfferOffer for all of the outstanding Shares at a price of $18.00 per Share, net to the seller in cash, subject to only (i) there to a minimum of 2,649,538 Shares (or such other number of Shares, when added to the number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned Subsidiary (as defined in Section 1.3(a)) of Parent, as shall constitute a majority of the Company's Fully Diluted Shares (as defined in Section 4.2) (the "Minimum Shares") being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration or termination of the Offer that number of Shares which, together with and not withdrawn (the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Share Condition”") and (ii) the satisfaction or waiver of to the other conditions and requirements to the Offer set forth in Annex ANNEX I. Subject The Purchaser may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the prior satisfaction right to purchase all or waiver by the Purchaser any portion of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after (the "Tendered Shares"), but no such assignment shall relieve the Purchaser is legally permitted of its obligations hereunder. The Purchaser expressly reserves the right to do so under applicable lawwaive any of the conditions to the Offer set forth in ANNEX I and to modify the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that that, without the initial expiration date prior written approval of the Company, the Purchaser shall not amend or modify the terms of the Offer shall to (i) reduce the cash price to be paid pursuant to the date that is twenty Offer, (20ii) business days following reduce the commencement number of Shares as to which the Offer is made, (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”iii) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable to be paid in the Offer, (iv) modify or waive the Minimum Share Condition, or (v) impose conditions to its obligation to accept for payment or pay for the Tendered Shares other than those set forth in ANNEX I. The Offer or reduce may not be extended without the maximum number of Shares to be purchased in Company's prior written consent; PROVIDED, HOWEVER, that the Purchaser may extend (and re-extend) the Offer without the prior written consent for up to a total of 20 business days if, as of the Company. For initial expiration date, which shall be 20 business days following commencement of the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended)Offer, all conditions to the Offer there shall not have been satisfied or waived, validly tendered and not withdrawn that number of Shares necessary to permit the Purchaser may, from time Merger to time, in its sole discretion, extend be effected without a meeting of the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” Company's stockholders in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofDGCL.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andros Acquisition Inc), Agreement and Plan of Merger (Andros Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) its terms and none of the events set forth or conditions specified in Annex I (other than paragraphs (f) and (i)) ANNEX A hereto shall have occurred and be continuing and (iii) the Company or shall have complied with its applicable obligations under Section 1.2exist, Acquisition Sub shall, as promptly soon as practicable after the effectiveness date hereof, (but in no event later than the fifth business day following the public announcement of the Form 10Offer (treating the business day on which such public announcement occurs as the first business day)), and in any event, within five (5) business days thereafter, the 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”"EXCHANGE ACT")) an offer to purchase (as such offer to purchase may be amended in accordance with the terms of this Agreement, the "OFFER") all of the issued and outstanding shares ("SHARES") of common stock, par value $1.00 per share, of the Company (the "COMPANY COMMON STOCK") at a price of not less than $20.00 per Share, net to the seller in cash (less applicable withholding taxes, if any) (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE"). After the commencement of the Offer, the Offer and the obligation of Acquisition Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in ANNEX A hereto and the condition (ithe "MINIMUM CONDITION") that there being be validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority two-thirds of the Shares outstanding on a fully diluted basis (the "MINIMUM PERCENTAGE"). Parent and no less than a majority of Acquisition Sub expressly reserve the voting power of the outstanding shares of capital stock of the Company entitled right to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements waive any condition set forth in Annex I. Subject ANNEX A, to change the prior satisfaction form or waiver by amount payable per Share in the Purchaser Offer (including the Offer Price) and to make any other changes in the terms and conditions of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable lawOffer; provided, however, that without the initial expiration date prior written consent of the Offer Company, Parent shall not amend, or permit to be the date that is twenty (20) business days following the commencement of amended, the Offer to (i) decrease the “Initial Expiration Date”). The Offer Price, (ii) change the consideration into a form other than cash, (iii) add any conditions to the obligation of the Purchaser Acquisition Sub to accept for exchange, payment and to exchange the Offer Consideration for, any pay for Shares validly tendered on or prior pursuant to the expiration of the Offer and not withdrawn shall be subject Offer, (iv) amend (other than to waive) the Minimum Condition and or the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange ANNEX A, or (the “Offer to Exchange”v) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without Offer. If on the prior written consent initial scheduled expiration date of the Company. For Offer (the avoidance of doubt: (x) if on "INITIAL EXPIRATION DATE"), which shall be 20 business days after the Initial Expiration Date (as it may be extended)date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser Acquisition Sub may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the 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 would otherwise is 60 business days immediately following the Initial Expiration Date (the "FINAL EXPIRATION DATE"); and provided further that if on the Initial Expiration Date, all conditions to the Offer shall have been satisfied or waived other than the Minimum Condition, Acquisition Sub shall be permitted required to extend the Expiration Date to the date that is ten 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 Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX") in 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 and clause (xa) of this sentence ifANNEX A as it relates to compliance with the HSR Act or other applicable antitrust laws, on Acquisition Sub shall be required to extend the Expiration Date for such expiration dateadditional periods as may be necessary to permit the parties to seek to obtain termination of the waiting period under the HSR Act in accordance with Section 7.1 below up to the date that is nine months after the date upon which Parent files a pre-merger notification and report form under the HSR Act (the "HSR EXPIRATION DATE"); provided, there have not been tendered however, that if the applicable waiting period (and not withdrawnany extension thereof) at least ninety percent (90%) under the HSR Act in respect of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended expires or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange date that is ten business days prior to the HSR Expiration Date, the Expiration Date shall be the date which is ten business days immediately following public disclosure of Shares in the expiration or termination of the waiting period under the HSR Act. Acquisition Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under this Agreement and applicable law. The Offer shall be made by means of an offer to purchase (the Purchaser shall promptly return"OFFER TO PURCHASE") containing the terms set forth in this Agreement, the Minimum Percentage and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofconditions set forth in ANNEX A hereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Precision Castparts Corp), Agreement and Plan of Merger (Wyman Gordon Co)
The Offer. (a) Provided that that: (ix) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) Article V and (i)) shall have occurred and be continuing and (iiiy) the Company shall have complied with its applicable obligations under Section 1.2Section 1.3, as promptly as practicable after the effectiveness of the Form 10reasonably practicable, and in any eventevent within 10 days of the date of this Agreement, within five (5) business days thereafter, the Purchaser Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer, . The obligations of Parent to accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to the terms and conditions of this Agreement, including (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration satisfaction of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote Minimum Condition (as defined in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Exhibit A hereto) and (ii) the satisfaction or waiver by Parent of each of the other conditions and requirements set forth in Annex I. Subject Exhibit A hereto (together with the Minimum Condition, the “Offer Conditions”). Parent expressly reserves the right to (A) increase the prior satisfaction Offer Price, (B) waive any Offer Condition (other than the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or waiver by the Purchaser any of its Subsidiaries, would represent at least one Share less than 66.67% of the Minimum Condition number of Shares issued and outstanding, or the Antitrust Condition) or (C) modify any of the other terms or conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains inconsistent with the terms set forth in of this Agreement, except that, without the Minimum Condition and consent of the other conditions and requirements set forth in Annex I. The Purchaser Company, Parent shall not decrease (1) reduce the Offer ConsiderationPrice, (2) change the form of consideration payable in the Offer or (other than by adding cash consideration), (3) reduce the maximum number of Shares to be purchased sought in the Offer without or (4) add to the prior written consent Offer Conditions, (5) amend or modify any of the CompanyOffer Conditions in a manner that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of Parent to consummate the Offer, or (6) change or waive the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the number of Shares issued and outstanding, or the Antitrust Condition, (7) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(b) of this Agreement or (8) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, Company will procure that no Share held in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date treasury of the Offer that would otherwise be permitted under clause (x) Company or any of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated Subsidiaries immediately prior to the exchange of Shares in Acceptance Time (collectively, “Excluded Shares”) will be tendered pursuant to the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 2 contracts
Samples: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, as promptly as practicable after the effectiveness date hereof, but in no event later than five U.S. business days following the public announcement of the Form 10execution of this Agreement, and in any event, within five (5) business days thereafter, the Purchaser Merger Subsidiary 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 an offer (the “Exchange Act”)"OFFER") to purchase (i) all of the Common Shares at a price of $28.00 per Common Share ("COMMON SHARE PRICE") and (ii) all of the Preferred Shares at a price equal to the Common Share Price times 326.531 per Preferred Share, in each case, net to the seller in cash. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer that and not withdrawn, a number of Shares whichthat, together with the Shares then beneficially owned by the PurchaserParent, represents at least a majority of the Common Shares outstanding on a fully fully-diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”"MINIMUM CONDITION") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject I hereto. Merger Subsidiary expressly reserves the right to the prior satisfaction or waiver by the Purchaser waive any of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after and to make any change in the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date terms or conditions of the Offer shall be the date Offer, provided that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall no change may be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreementthat, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For , waives the avoidance Minimum Condition, changes the form of doubt: (x) if on consideration to be paid, decreases the Initial Expiration Date (as it may be extended), all price per Share or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I. If all of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Merger Subsidiary shall not have been extend the Offer from time to time until such conditions are satisfied or waived, the Purchaser may, from time provided that Merger Subsidiary shall not be required to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basisreferred to in Section 10.01(b)(i). The Purchaser may (i) increase the Offer Consideration and extend the Offer Subject to the extent required by applicable law in connection with such increase foregoing and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion terms and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent conditions of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly returnMerger Subsidiary shall, and Parent shall cause any depository or exchange agentit to, including the Exchange Agentaccept for payment and pay for, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.as
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Meggit PLC), Agreement and Plan of Merger (Whittaker Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) its terms and none of the events set forth in Annex I Paragraphs (other than paragraphs a) through (f) and (i)) of Annex I hereto shall have occurred and or be continuing and existing, no later than two (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10, and in any event, within five (52) business days thereafterafter the public announcement of the terms of this Agreement, the 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”)) the Offer, subject in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as soon as practicable after the public announcement of the terms of this Agreement, but in no event later than two business days after such public announcement. The Offer shall expire and terminate on the twentieth (i20th) there being validly tendered in business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in the aggregate) and not withdrawn prior order to the expiration satisfy any of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (2) two business days after the public announcement of the terms of this Agreement, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the prior satisfaction or waiver holders of Common Shares with respect to the Offer, which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction of the Minimum Condition and conditions set forth in Annex I hereto. Without the other prior written consent of the Company, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions and requirements set forth in Annex I, waive the Purchaser shall consummate Minimum Condition (as defined in Annex I), impose additional conditions to the Offer or amend any other term of the Offer in accordance with its any manner adverse to the holders of Common Shares; provided that the Purchaser expressly reserves the right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the Company. Subject to the terms of the Offer and this Agreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Purchaser will accept for exchange, payment and exchange the Offer Consideration for, pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser is legally permitted shall make reasonable provision for the payment of Offer proceeds to do so under applicable law; provided, however, that the initial expiration date be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the Offer shall be the date that is twenty (20) business days following the commencement Company's outstanding Common Shares. Subject to Section 8.01, if any of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made I hereto are not satisfied or, to the extent permitted by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, waived by the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent as of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extendedor any subsequently scheduled expiration date), all conditions to Purchaser will extend the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Dateeach case, for such the shortest time period as that it reasonably believes is necessary for the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date consummation of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) Offer. Each of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer parties hereto shall use its reasonable best efforts to the extent required by applicable law cause all conditions precedent set forth in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required Annex I to be extended) without fulfilled and avoid the written consent occurrence of the Company, except any event or to cure any event which may prevent such conditions precedent set forth in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofAnnex I from being fulfilled.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zeigler Coal Holding Co), Agreement and Plan of Merger (Aei Resources Inc)
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2A hereto, as promptly as practicable after the effectiveness date hereof (but in no event later than five business days from the public announcement of the Form 10, and in any event, within five (5) business days thereafterexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")), an offer (the "Offer") to purchase for cash any and all of the issued and outstanding shares of (i) Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock") at a price of $35.00 per Common Share, net to the seller in cash (such price, or such higher price per Common Share as may be paid in the Offer, subject being referred to (i) there being validly tendered in herein as the "Common Offer (in Price," provided that Purchaser shall not be required to increase the aggregate) and not withdrawn prior to the expiration of the Common Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Price) and (ii) the satisfaction or waiver Class A Common Stock, par value $0.01 per share, of the other conditions Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and requirements set forth Harris Trust and Savings Xxxx, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in Annex I. Subject cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The Purchaser shall, on the terms and subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions of the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser it is legally permitted to do so under applicable law; providedprovided that, howeverif the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that the initial expiration date of all conditions to the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)first have been satisfied or waived. The obligation obligations of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, pay for any and all Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition Condition") and the other conditions and requirements set forth in Annex I. A hereto. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. A hereto. The Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, or impose any additional conditions to be purchased in the Offer, or amend any term of the Offer in any manner adverse to the holders of the Shares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the CompanyCompany (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). For Notwithstanding the avoidance foregoing, the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of doubt: (xSection 7.01(b)(i) if on hereof if, and to the Initial Expiration Date (as it may be extended)extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer shall have not have been satisfied or waived. In addition, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser Offer Price may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act be increased and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise may be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company. In the event of any increase in the Common Offer Price, except the Class A Offer Price will be increased by an equal amount, and in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares any increase in the OfferClass A Offer Price, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofCommon Offer Price will be increased by an equal amount.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Berg Acquisition Co), Agreement and Plan of Merger (Berg Acquisition Co)
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in paragraphs (ii)(a) - (ii)(g) of Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, then as promptly as practicable after the effectiveness of the Form 10, date hereof (and in any event, event within five eight (5) 8) business days thereafterof the date of this Agreement), the Purchaser Merger Sub shall (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act")) an offer (the "Offer") to purchase any and all of the outstanding shares of Company Common Stock at a price per Share equal to the Per Share Amount, net to the seller in cash, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer Documents") with the Securities and Exchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the rules and regulations promulgated thereunder (disclosure required by Rule 14d-6 under the “Exchange Act”)) Act by complying with the Offer, dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Documents. The Offer shall be subject only to (i) the condition that there being shall be validly tendered in accordance with the terms of the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that Expiration Date (as hereinafter defined) a number of Shares whichthat, together with the Shares then beneficially owned by the PurchaserParent and/or Merger Sub or any other subsidiary of Parent, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of Fully-Diluted Basis (as hereinafter defined) (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject I hereto. Merger Sub expressly reserves the right to the prior satisfaction or waiver by the Purchaser waive any of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange make any change in the Offer Consideration for, any Shares validly tendered on terms of or prior conditions to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) Offer, provided that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company, (i) the Minimum Condition may not be waived, (ii) the condition to the Offer that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "XXX Xxx") xx xxxer any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be waived, (iii) no change may be made that changes the form of consideration to be paid, decreases the Per Share Amount or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I and (iv) no other change may be made to any term of the Offer in any manner adverse to the holders of the Shares. For Notwithstanding the avoidance foregoing, except as otherwise provided in this Section 1.01(a), without the consent of doubt: the Company, Merger Sub shall have the right to extend the Offer, provided that such extension does not extend beyond the later of (x) if on July 31, 2003 and (y) the Initial date that is 30 days after the date that the Company has complied with its obligations under Section 6.03 (the "Outside Date") (i) from time to time if, at the scheduled or extended Expiration Date (as it may be extended)Date, all any of the conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for until such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one conditions are satisfied or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and waived or (ii) extend for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer to the extent otherwise or any period required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser Offer shall not terminate remain open until 12:00 midnight on the date that is twenty (20) business days after the commencement of the Offer prior to any scheduled expiration date (as the same may be "Expiration Date"), unless Merger Sub shall have extended or required to be extended) without the written consent period of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If time for which the Offer is terminated or withdrawn by open pursuant to, and in accordance with, the Purchaser, or terms of this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.as may be
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Elite Information Group Inc), Agreement and Plan of Merger (Elite Information Group Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) to this Agreement shall have occurred and be continuing and (iii) occurred, the Company shall have complied with its applicable obligations under Section 1.2Merger Sub shall, as promptly as practicable not later than one business day after execution of this Agreement, publicly announce the effectiveness of the Form 10transactions contemplated hereby, and in any event, within not later than five (5) business days thereafterafter execution of this Agreement, the 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 amended (the “"Exchange Act”")), an offer to purchase all Shares at a price of $9.50 per Share, net to the seller in cash (the "Offer," which term shall include any amendments to such Offer not prohibited by this Agreement) the Offerand, subject to a minimum number of Shares which, when added to the Shares, if any, beneficially owned by the Purchaser, its affiliates or the Merger Sub (iexcluding Shares beneficially owned by the Purchaser by virtue of the Shareholders Agreement (as defined below)) there would constitute at least a majority of the outstanding Shares (on a fully-diluted basis) being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with (the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”") and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject I of this Agreement, shall use its best efforts to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)Offer. The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, purchase containing the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease I and no other conditions. Simultaneously with the Offer Consideration, change the form commencement of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser Merger Sub shall promptly returnfile with the Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto, the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the offer to purchase and a form of letter of transmittal (collectively, together with any amendments and supplements thereto, the "Offer Documents"). The Company and its counsel shall cause any depository be given a reasonable opportunity to review and make comments with respect to the Schedule 14D-1 and the Offer Documents and all amendments and supplements thereto prior to their filing with the Commission or exchange agent, including the Exchange Agent, acting on behalf dissemination to stockholders of the Purchaser, to return all tendered Shares to the registered holders thereofCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tristar Aerospace Co), Agreement and Plan of Merger (Alliedsignal Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of Article VIII and subject to the events conditions set forth in Annex I A (other than paragraphs (f) and (ias defined below)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10practicable, and but in any event, within no event later than five (5) business days thereafterBusiness Days after the public announcement of the execution of this Agreement by the parties, the Purchaser Parent 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 amended (the “"Exchange Act”")) ), the OfferOffer for any and all of the Shares, at the Offer ------------ Price. The parties agree such public announcement shall occur promptly after the execution and delivery of this Agreement. The obligation of Parent to accept for payment and to pay for any Shares tendered shall be subject only to (i) there being validly tendered in the Offer (in condition that the aggregate) FD Shares and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of issued and outstanding Shares not owned by FD be validly tendered and not withdrawn (the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively"Minimum ------- Condition"), the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject A hereto ("Annex --------- ----- A"). Parent expressly reserves the right to increase the prior satisfaction Offer Price or waiver by to make - any other changes in the Purchaser terms and conditions of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable lawOffer; provided, however, that that, unless previously approved by the initial expiration date Special Committee (the "Special ------- Committee") of the Offer shall Board of Directors (the "Company's Board") and the Company's --------- --------------- Board in writing, no change may be the date that is twenty made which (20i) business days following the commencement of decreases the Offer Price, (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”ii) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change changes the form of consideration payable to be paid in the Offer or reduce Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: Offer, (xiv) if on the Initial Expiration Date (as it may be extended), all imposes conditions to the Offer shall not have been satisfied in addition to those set forth in Annex A, (v) amends the conditions set forth in Annex A to 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 waived(viii) amends the Minimum Condition. It is agreed that the conditions set forth in Annex A other than the Minimum Condition are for the sole benefit of Parent and may be waived by Parent, the Purchaser may, in whole or in part at any time and from time to time, time in its sole discretion, extend other than the Initial Expiration DateMinimum Condition, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date to which prior written approval of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (Special Committee and not withdrawn) the Company's Board is required. The failure by Parent at least ninety percent (90%) any time to exercise any of the outstanding Shares on foregoing rights shall not be deemed a fully diluted basiswaiver 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 Purchaser may (i) increase Company agrees that no Shares held by the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in Company or any of its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date Subsidiaries (as the same may defined in Section 9.2) will be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares tendered in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (International Technology Corp), Agreement and Plan of Merger (Fluor Daniel Gti Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated As promptly as practicable, but in accordance with Section 8.1, (ii) none no event later than five business days after the public announcement of the events execution of this Agreement, the Purchaser shall, and the Parent shall cause the Purchaser to, commence a tender offer (the "Offer") to purchase for cash all of the issued and outstanding shares of Common Stock (the "Shares"), together with the associated rights, if any, to purchase Series A participating Cumulative Preferred Stock, par value $.01 per share ("Series A Shares"; and together with the Shares, the "Securities") at a price of not less than $11.625 per Security net to the seller in cash; it being understood that the Offer will not apply to the 179,656 Shares (or associated rights) previously held by the Trust which are being returned to the Company and canceled as described in the third recital to this Agreement. The obligations of the Purchaser and the Parent to consummate the Offer and to accept for payment and purchase the Securities tendered shall be subject only to the conditions set forth in Annex I (other than paragraphs (f) and (i)) A hereto. The Purchaser shall have occurred and not without the Company's prior written consent reduce the price per Security or the number of Securities sought to be continuing and (iii) purchased or modify the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness form of consideration to be received by holders of the Form 10, and Securities in any event, within five (5) business days thereafter, the 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”)) the Offer, subject to increase the condition (the "Minimum Condition") set forth in clause (i) there being validly tendered in of the first sentence of Annex A hereto, impose additional conditions to the Offer (in the aggregate) and not withdrawn prior to the expiration or amend any term of the Offer that number of Shares which, together with in a manner materially adverse to the Shares then beneficially owned by the Purchaser, represents at least a majority holders of the Shares outstanding on a fully diluted basis and no less than a majority Securities. Subject only to the conditions of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements Offer set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex IA, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchangeshall, and exchange the Offer Consideration forParent shall cause the Purchaser to, pay for all Shares of the Securities validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofpermissible.
Appears in 2 contracts
Samples: Plan of Merger (Cambrex Corp), Plan of Merger (Cambrex Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) 8.1 and (i)) no event shall have occurred and be continuing and no circumstance shall exist which would result in a failure to satisfy the condition set forth in clause (iiiii)(a) the Company shall have complied with its applicable obligations under Section 1.2of Annex A hereto, as promptly as practicable after the effectiveness of the Form 10, and in any event, within five (5) business days thereafter, the 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”)) the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the date hereof, and in any event within eight business days from the date hereof. The obligation of Purchaser is legally permitted to do so under applicable lawaccept for payment and pay for Shares validly tendered and not withdrawn shall be subject only to the satisfaction or waiver by Purchaser of the conditions or events set forth in Annex A hereto (the "Offer Conditions"). Purchaser expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes in the terms and conditions of the Offer; providedprovided that, howeverunless previously approved by the Company in writing, that (i) Purchaser may not waive the Minimum Condition (as defined in Annex A) or any of clauses (ii)(a), (e) or (f) of the Offer Conditions, (ii) Purchaser may not extend the expiration date of the Offer beyond the initial expiration date of the Offer shall be except (A) as required by applicable law, (B) that if any condition to the Offer has not been satisfied or waived (other than as a result of the failure by Parent or Purchaser to perform any of its obligations under this Agreement), Purchaser may, in its sole discretion, extend the expiration date that is twenty (20) business days following the commencement of the Offer for one or more periods (not in excess of 10 business days each) but in no event later than the “Initial Expiration Date”Outside Date (as defined below) or (C) as provided hereafter in this Section 1.1(a). The obligation of , (iii) no change may be made which decreases the Purchaser to accept for exchangeprice per Share payable in the Offer, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn (iv) there shall be subject no change to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce (other than by adding consideration), (v) there shall be no reduction in the maximum number of Shares to be purchased in the Offer without and (vi) there shall be no imposition of any condition to the prior written consent of Offer in addition to those set forth herein, there shall be no modification or amendment to the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions to Offer Conditions and the Offer shall not have been be otherwise modified or amended, in each case, in a manner which is adverse to holders of the Shares. On the terms and subject to the prior satisfaction or waiver of the Offer Conditions, Parent shall provide funds to Purchaser and Purchaser shall accept for payment and pay for Shares as soon as it is permitted to do so under applicable law; provided that (i) at each scheduled expiration date of the Offer, if any of the Offer Conditions shall not be satisfied or waived, Purchaser shall, at the Purchaser may, from time to time, in its sole discretionrequest of the Company, extend the Initial Expiration Date, expiration date of the Offer for such period as one or more periods (not in excess of 10 business days each) but in no event later than the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act Outside Date and (zii) the Purchaser may, in its sole discretion, shall extend the Offer for any reason on one period required by any rule, regulation, interpretation or more occasions for an aggregate period position of not more than ten the Securities and Exchange Commission (10"the SEC") business days beyond or the latest staff thereof applicable to the Offer. The initial expiration date of the Offer that would otherwise shall be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) 20 business days from the commencement of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection accordance with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Reh Mergersub Inc), Agreement and Plan of Merger (Reh Mergersub Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) to this Agreement shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10, and in any event, within five (5) business days thereafteroccurred, the Purchaser shall (or one or more other direct or indirect wholly-owned subsidiaries of Parent) shall, not later than one business day after execution of this Agreement, publicly announce the transactions contemplated hereby, and not later than five business days after execution of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")), an offer to purchase all Shares at a price of $24.00 per Share, net to the seller in cash (the "Offer," which term shall include any amendments to such Offer not prohibited by this Agreement) the Offerand, subject to a minimum of not less than a majority of the outstanding Shares (ion a fully-diluted basis) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with (the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”") and (ii) the satisfaction or waiver of the other further conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser I of the Minimum Condition and the other conditions and requirements set forth in Annex Ithis Agreement, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)Offer. The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, purchase containing the Minimum Condition and the other further conditions and requirements set forth in Annex I. The Purchaser hereby covenants and agrees that it shall not decrease hold the Offer Consideration, change open for no less than 25 business days. Simultaneously with the form commencement of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly returnfile with the Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (the "Schedule 14D-1"). Notwithstanding the foregoing, in the event any of the conditions set forth in Annex I to this Agreement shall have occurred, the Purchaser may terminate the Offer. In the event the Purchaser terminates the Offer, it may, subject to the prior written approval of the Board of Directors of the Company, seek the approval of the Company's stockholders for the Merger pursuant to the applicable provisions of the General Corporation Law of the State of Delaware, as amended ("Delaware Law"), as provided in Section 6.11. In such event, the Company shall take all necessary action to call a special meeting of its stockholders to seek such approval, and shall cause any depository or exchange agentto prepare and file with the Commission a proxy statement relating to such special meeting, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofin accordance with Sections 6.1 and 6.2 hereof.
Appears in 2 contracts
Samples: 1 Agreement and Plan of Merger (WDR Acquisition Corp), Agreement and Plan of Merger (Wonderware Corp)
The Offer. (a) Provided that (i) this Agreement Parent shall not have been terminated in accordance with Section 8.1cause Purchaser to, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2Purchaser shall, as promptly soon as practicable after the effectiveness date hereof, but in any event within five business days after the public announcement of the Form 10execution hereof, and in any event, within five (5) business days thereafter, the Purchaser 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 promulgated thereunder amended (the “"Exchange Act”)") the OfferOffer for all of the outstanding Shares at a price equal to the Per Share Amount, net to the sellers thereof in cash, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to I hereto (the prior satisfaction or waiver by the Purchaser of "Offer Conditions") including the Minimum Condition (as defined therein) and the other conditions and requirements set forth in Annex I, the termination provisions of Section 8 hereof. Purchaser shall consummate the Offer in accordance with its on the terms and subject to the conditions provided in this Section 1.1. Subject to the terms and conditions of this Agreement, the obligation of Purchaser to accept for exchange, and exchange the Offer Consideration for, all payment Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and satisfaction or waiver by Purchaser of the other conditions and requirements set forth in Annex I. Offer Conditions. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, purchase which shall contain as conditions only the Minimum Condition and the other conditions and requirements set forth in Annex I. The I hereto, and, subject to the succeeding sentence, shall otherwise contain, and be entirely consistent with, the terms and conditions of the Offer as described in this Agreement. Each of Purchaser and Parent expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes to the terms of the Offer, provided that, without the consent of the Company, neither Parent nor Purchaser shall not decrease (i) amend or waive the Minimum Condition or the HSR Condition (as defined 5 herein), (ii) amend any other condition of the Offer Considerationas set forth herein or in Annex I hereto, (iii) reduce the Per Share Amount, (iv) change the form of consideration payable to be paid in the Offer or (other than by adding cash consideration), (v) reduce the maximum number of Shares to be purchased in the Offer, or (vi) amend any other term of the Offer in a manner which, in the reasonable judgment of the Company, is adverse to the holders of Shares. The Per Share Amount shall be net to the sellers in cash, without interest, subject to reduction only for any applicable federal back-up withholding taxes. Notwithstanding the foregoing, Purchaser may, without the prior consent of the Company, subject to the Company's right to terminate this Agreement pursuant to Article 8, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond the then-scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then-scheduled expiration date of the Offer any of the conditions to Purchaser's obligation to accept for payment and pay for the Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived, and, at the request of the Company, Purchaser shall, subject to Parent's right to terminate this Agreement pursuant to Article 8, extend the Offer for additional periods up to but not later than September 30, 1998, unless the conditions not satisfied or earlier waived on the then-scheduled expiration date are one or more of the Minimum Condition or the conditions set forth in paragraphs (a), (c), (d) or (f) of Annex I hereto, provided that (x) if the only condition not satisfied is the Minimum Condition, the satisfaction or waiver of all other conditions shall have been publicly disclosed at least five business days before termination of the Offer and (y) if paragraph (a) or (f) of Annex I hereto has not been satisfied and the failure to so satisfy can be remedied, the Offer shall not be terminated unless the failure is not remedied within 30 calendar days after Parent has furnished the Company with written notice of such failure), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "Commission") or the staff thereof applicable to the Offer, and (iii) extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected without a meeting of the Company's stockholders in accordance with Section 253 of the Delaware General Corporation Law (the "DGCL"). In addition, the Per Share Amount may be increased without the consent of the Company. For Subject to the avoidance terms of doubt: the Offer, including the Offer Conditions, Purchaser shall accept for payment and pay for all Shares duly tendered at the earliest time at which it is permitted to do so under applicable provisions of the Exchange Act; provided that, as set forth above, Purchaser shall have the right, in its sole discretion, to extend the Offer for up to five business days notwithstanding the prior satisfaction of the Offer Conditions, in order to attempt to satisfy the requirements of Section 253 of the DGCL. It is agreed that the Offer Conditions other than the Minimum Condition and the condition relating to the termination or expiration of applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (xthe "HSR Act") if on (the Initial Expiration Date (as it "HSR Condition") are solely for the benefit of Purchaser and may be extended)asserted by Purchaser regardless of the circumstances resulting in a condition not being satisfied (except for any action or inaction by Purchaser or Parent constituting a breach of this Agreement) or, all conditions except with respect to the Offer shall not have been satisfied Minimum Condition and the HSR Condition, may be waived by Purchaser, in whole or waived, the Purchaser may, in part at any time and from time to time, in its sole discretion, extend . On the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of commencement of the Offer, Parent and Purchaser, with the cooperation of, and prior review thereof by, the Company, shall file with the Commission a Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer that would otherwise be permitted under clause will contain or will incorporate by reference the Offer (xor portions thereof) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) forms of the outstanding Shares on a fully diluted basisrelated letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Purchaser may (i) increase Schedule 14D-1, and all amendments and supplements thereto, shall comply as to form in all material respects with the provisions of all applicable federal securities laws. Purchaser, and the Company with respect to information supplied by it for use in the Schedule 14D-1 or the Offer Consideration and extend Documents, agree promptly to correct the Schedule 14D-1 or the Offer 2 6 Documents if and to the extent that any of them shall have become false or misleading in any material respect or any event occurs which should be set forth in an amendment or supplement to the Schedule 14D-1, and Purchaser shall take all steps necessary to cause the Schedule 14D-1 as so corrected or supplemented to be filed with the Commission and such Offer Documents as so corrected to be disseminated to holders of Shares and any other holders of securities of the Company (if any), in each case as and to the extent required by applicable law federal securities laws. In addition, Parent and Purchaser agree to promptly provide the Company and its counsel in connection writing with such increase and (ii) extend any comments Parent, Purchaser or their counsel may receive from time to time from the Offer to the extent otherwise required by applicable law, in each case in SEC or its sole discretion and without the Company’s consentstaff. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.1.2
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bowne & Co Inc), Agreement and Plan of Merger (Bowne & Co Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, 7.1 and (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) hereto that would entitle the Buyer not to consummate the Offer shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2continuing, as promptly as practicable after practicable, the effectiveness Buyer shall (or shall cause a Subsidiary of the Form 10, and in any event, within five (5Buyer to) business days thereafter, the 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”)) the Offer for any and all of the Company Shares. In the event that the Buyer shall cause a Subsidiary of the Buyer to commence the Offer, each reference to the Buyer in this Article I and Annex I shall be deemed, where applicable, to refer to such Subsidiary. Each Company Share accepted by the Buyer pursuant to the Offer shall be exchanged for the right to receive the Offer Price from the Buyer. The obligation of the Buyer to accept for payment and to pay for any Company Shares tendered shall be subject only to the satisfaction or waiver of: (i) the condition that there being shall be validly tendered in accordance with the terms of the Offer (in prior to the aggregate) Expiration Time and not withdrawn prior to the expiration of the Offer that a number of Company Shares whichthat, together with the Company Shares then beneficially owned by the PurchaserBuyer and its Subsidiaries, represents at least a majority ninety-five percent (95%) of the Outstanding Company Shares outstanding on a fully diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) "MINIMUM CONDITION"); and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer Buyer expressly reserves the right to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease increase the Offer ConsiderationPrice, change to waive any of the form of consideration payable in conditions to the Offer or reduce to make any other changes in the maximum terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made that: (1) decreases the Offer Price; (2) changes the form or combination of consideration to be paid in the Offer; (3) reduces the number of Company Shares to be purchased in the Offer without Offer; (4) amends the prior written consent conditions set forth in Annex I to broaden the scope of such conditions, add any additional conditions, or otherwise amend any other material term of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions Offer in a manner materially adverse to the Offer shall not have been satisfied Company Shareholders; (5) extends the Offer, except as provided in Section 1.1(b) or waivedin the next sentence; or (6) amends the Minimum Condition, except as provided in the Purchaser may, from time next sentence. The Buyer expressly reserves the right to time, in its sole discretion, extend amend or waive the Initial Expiration Date, for such period as Minimum Condition to reduce the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” percentage of Outstanding Company Shares required to be validly tendered in accordance with Rule 14d-11 under the Exchange Act and (z) terms of the Purchaser mayOffer, in its sole discretion, PROVIDED that the Buyer shall extend the Offer for any reason on one or more occasions for an aggregate a period of not more fewer than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on 10 Business Days after any such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended amendment or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofwaiver.
Appears in 2 contracts
Samples: Offer Agreement (Hewlett Packard Co), Offer Agreement (Hewlett Packard Co)
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2I, as promptly as practicable after the effectiveness of the Form 10, date hereof (and in any eventevent no later than ten (10) Business Days after the Company satisfies its obligations in the third sentence of Section 1.2(a)), within five (5) business days thereafterMerger Sub shall, the Purchaser and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”Act “)) the Offer. The Offer and the obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to (i) the condition that there being shall be validly tendered in accordance with the Offer (in terms of the aggregate) and not withdrawn Offer, prior to the scheduled expiration of the Offer that (as it may be extended hereunder) and not withdrawn, a number of Shares whichthat, together with the Shares then beneficially directly or indirectly owned by the PurchaserParent, represents at least a majority of the sum of (i) the total number of Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or immediately prior to the expiration of the Offer (as it may be extended in accordance with Section 1.1(b)) and not withdrawn shall (ii) a number of Shares determined by Parent up to a maximum of the total number of Shares issuable upon the exercise or conversion of all options, warrants, rights and convertible securities (if any) that will be subject to vested by the Outside Date (such sum being the “Fully-Diluted Shares “) (the “Minimum Condition “) and to the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange I (together with the Minimum Condition, the “Offer Conditions “). Merger Sub expressly reserves the right (but shall not be obligated) to Exchange”) that contains waive any of the conditions to the Offer and to make any change in the terms set forth in this Agreementof or conditions to the Offer; provided, that without the Minimum Condition and prior written consent of the other conditions and requirements set forth in Annex I. The Purchaser Company, Merger Sub shall not decrease (i) reduce the Offer ConsiderationPrice, (ii) change the form of consideration payable in the Offer or (other than adding consideration), (iii) reduce the maximum number of Shares subject to be purchased in the Offer without Offer, (iv) waive or change the prior written consent of Minimum Condition or the Company. For the avoidance of doubt: Termination Condition, (xv) if on the Initial Expiration Date (as it may be extended), all conditions add to the Offer shall not have been satisfied or waivedConditions, the Purchaser may, from time to time, in its sole discretion, (vi) extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be except as required or permitted under clause by Section 1.1(b) or (xvii) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) modify any Offer Condition or any term of the outstanding Shares on Offer set forth in this Agreement in a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer manner adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent holders of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofShares.
Appears in 1 contract
Samples: Agreement and Plan of Merger (O Reilly Automotive Inc)
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, Buyer, through Merger Subsidiary, shall, as promptly as practicable after the effectiveness date hereof, but in no event later than five business days following the public announcement of the Form 10terms of this Agreement, and commence the Offer to purchase all of the outstanding Shares at a price of $35.00 per Share ("Offer Price"), net to the seller in any event, within five (5) business days thereafter, the 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”)) the Offercash, subject to any amounts required to be withheld under applicable federal, state, local or foreign income tax laws and regulations. The consummation of the Offer shall be subject only to (i) the condition that there being shall be validly tendered and not withdrawn, in accordance with the terms of the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer that Offer, a number of Shares which, together with the Shares then beneficially owned by the Purchaser, which represents at least a majority two-thirds of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”) "), and (ii) the satisfaction other conditions set forth in Annex I hereto. Buyer expressly reserves the right to waive the Minimum Condition or waiver any of the other conditions to the Offer and requirements to make any change in the terms or conditions of the Offer (other than extending the Offer except as expressly provided below in this Section 1.01(a)); provided that no change may be made which (i) changes the form of consideration to be paid or decreases the Offer Price or the number of Shares sought in the Offer, (ii) imposes conditions to the Offer in addition to those set forth in Annex I. Subject I or (iii) is materially adverse to the prior satisfaction or waiver by the Purchaser holders of the Minimum Condition and Shares. Notwithstanding the other conditions and requirements set forth in Annex Iforegoing, the Purchaser Buyer shall consummate extend the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant at any time up to the Offer Outside Termination Date (as soon as practicable after the Purchaser such term is legally permitted to do so under applicable law; provideddefined in Section 10.01(iv)) for one or more periods of not more than ten business days, however, that if at the initial expiration date of the Offer shall be Offer, or any extension thereof, the date that is twenty (20) business days following the commencement of condition to the Offer requiring the expiration or termination of any applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended ("HSR Act"), is not satisfied. Except as set forth in the “Initial Expiration Date”). The obligation of preceding sentence and the Purchaser to following sentence or as otherwise may be required by law, Buyer shall either (i) accept for exchangepayment, and to exchange the Offer Consideration fornot later than 5:00 p.m. New York time on December 31, any 1995 all Shares validly tendered and not withdrawn on or prior to such date, or (ii) cause the expiration Offer to be extended so as to expire not earlier than 5:00 p.m. New York time on January 5, 1996. In addition: (i) Buyer may extend the Offer, at any time up to the Outside Termination Date for one or more periods of not more than ten business days, if any condition of the Offer and has not withdrawn been satisfied; (ii) Buyer shall be subject have the right to extend the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer at any time, for any reason, for a period not to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser exceed ten business days provided such extension shall not decrease (y) extend beyond the Offer Consideration, change the form of consideration payable in the Offer Outside Termination Date or reduce the maximum number of Shares to (z) be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) permitted if on the Initial Expiration Date (as it may be extended), all conditions to the Offer shall not have been satisfied or waivedand at least 90% of the outstanding Shares, the Purchaser mayon a fully diluted basis, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act have been validly tendered and not withdrawn; and (ziii) the Purchaser may, in its sole discretion, Buyer may extend the Offer for any reason on one or more occasions for an aggregate period incremental periods of not more than ten (10) business days beyond if at the latest expiration date time of any such extension an Acquisition Proposal (as such term is defined in Section 6.05) exists. In addition, the Offer that would otherwise Price may be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (increased and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer may be extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior Subject to the exchange terms and conditions of Shares in the Offer, the Purchaser Buyer shall pay, as promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf as practicable after expiration of the PurchaserOffer, to return for all Shares validly tendered Shares to the registered holders thereofand not withdrawn.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pratt & Lambert United Inc)
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred that would --------- result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) A hereto, the Purchaser shall, and (i)) Parent shall have occurred and be continuing and (iii) cause the Company shall have complied with its applicable obligations under Section 1.2Purchaser to, as promptly as practicable after the effectiveness date hereof, but in no event later than five business days following the public announcement of the Form 10terms of this Agreement, and in any event, within five (5) business days thereafter, the 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 a tender offer (the “Exchange Act”)"Offer") to purchase for cash all of the issued and ----- outstanding shares of Company Common Stock (the shares of Company Common Stock hereinafter referred to as the "Shares") at a price of not less than $5.37 per ------ Share net to the seller in cash. The Offer shall be subject to the condition that there shall be validly tendered (and not withdrawn) in accordance with the terms of the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer Offer, that number of Shares which, together with the Shares then beneficially owned by the Purchaser, which represents at least a majority of the outstanding Shares outstanding on a fully diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject to A hereto. ------------------ Notwithstanding the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex Iforegoing, the Purchaser shall consummate expressly reserves the Offer in accordance with its terms and accept for exchange, and exchange right to waive any of the Offer Consideration for, all Shares tendered pursuant conditions to the Offer as soon as practicable after and to make any change in the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date terms or conditions of the Offer shall be the date Offer, provided that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the -------- Company, the Purchaser shall not waive the Minimum Condition and shall not make any change in the Offer 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 Offer in addition to those set forth in Annex A. The Purchaser shall have the right to extend the Offer (for not more than an aggregate of five business days (as defined in Rule 14d-1 under the Exchange Act)) from time to time without the consent of the Company. For In addition to the avoidance of doubt: (x) rights set forth in the two preceding sentences, if on any scheduled expiration date of the Initial Expiration Date (as it may be extended), Offer all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, shall extend the Offer from time to time, in its sole discretion, extend the Initial Expiration Date, for time until such period as conditions have been satisfied or waived; provided that the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, shall have -------- no obligation to extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest date 60 days after commencement of the Offer unless the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act has not terminated or expired in which case not past the date set forth in Section 8.1(b) hereto. If on any scheduled expiration date of the Offer that would otherwise be permitted under clause all conditions to the Offer (xincluding the Minimum Condition) shall have been satisfied but the number of this sentence if, on such expiration date, there have not been Shares tendered (and not withdrawn) at least ninety percent (pursuant to the Offer represent less than 90%) % of the outstanding Shares Shares, on a fully fully-diluted basis. The basis (including for this purpose only options and warrants that are in-the-money and excluding for this purpose any right to acquire Shares that may not be exercised within 60 days from the applicable date), the Purchaser may (i) increase shall also have the Offer Consideration and right to extend the Offer from time to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and time without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except Company (for not more than an aggregate of 10 business days) in order to permit the event that this Agreement is terminated Purchaser to solicit the tender of additional Shares pursuant to Section 8.1the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior Subject to the exchange foregoing and to the terms and conditions of Shares in the Offer, the Purchaser shall agrees to pay, as promptly return, and shall cause any depository or exchange agent, including as reasonably practicable after the Exchange Agent, acting on behalf expiration of the PurchaserOffer, to return for all Shares properly tendered Shares and not withdrawn pursuant to the registered holders thereofOffer that the Purchaser is obligated to purchase.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2A hereto, as promptly as practicable after the effectiveness date hereof (but in no event later than five business days from the public announcement of the Form 10, and in any event, within five (5) business days thereafterexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")), an offer (the "Offer") to purchase for cash any and all of the issued and outstanding shares of (i) Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock") at a price of $35.00 per Common Share, net to the seller in cash (such price, or such higher price per Common Share as may be paid in the Offer, subject being referred to (i) there being validly tendered in herein as the "Common Offer (in Price," provided that Purchaser shall not be required to increase the aggregate) and not withdrawn prior to the expiration of the Common Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Price) and (ii) the satisfaction or waiver Class A Common Stock, par value $0.01 per share, of the other conditions Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and requirements set forth Harrxx Xxxst and Savings Bank, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in Annex I. Subject cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The Purchaser shall, on the terms and subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions of the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser it is legally permitted to do so under applicable law; providedprovided that, howeverif the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that the initial expiration date of all conditions to the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)first have been satisfied or waived. The obligation obligations of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, pay for any and all Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition Condition") and the other conditions and requirements set forth in Annex I. A hereto. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. A hereto. The Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, or impose any additional conditions to be purchased in the Offer, or amend any term of the Offer in any manner adverse to the holders of the Shares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the CompanyCompany (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). For Notwithstanding the avoidance foregoing, the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of doubt: (xSection 7.1(b)(i) if on hereof if, and to the Initial Expiration Date (as it may be extended)extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer shall have not have been satisfied or waived. In addition, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser Offer Price may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act be increased and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise may be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company. In the event of any increase in the Common Offer Price, except the Class A Offer Price will be increased by an equal amount, and in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares any increase in the OfferClass A Offer Price, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofCommon Offer Price will be increased by an equal amount.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berg Electronics Corp /De/)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1its terms, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2Acquisition Sub shall, as promptly soon as practicable after the effectiveness date hereof, (but in no event later than five business days following the public announcement of the Form 10Offer), and in any event, within five (5) business days thereafter, the 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 (as such offer to purchase may be amended in accordance with the terms of this Agreement, the "Offer") all of the issued and outstanding Shares at a price of not less than $5.00 per Share, net to the seller in cash (less applicable withholding taxes, if any) (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). After the commencement of the Offer, the Offer and the obligation of Acquisition Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the conditions set forth in Annex A hereto and the condition that there being be validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Percentage"). Parent and no less than a majority of Acquisition Sub expressly reserve the voting power of the outstanding shares of capital stock of the Company entitled right to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements waive any condition set forth in Annex I. Subject A, to change the prior satisfaction form or waiver by amount payable per Share in the Purchaser Offer (including the Offer Price) and to make any other changes in the terms and conditions of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable lawOffer; provided, however, that without the initial expiration date prior written consent of the Offer Company, Parent shall not amend, or permit to be the date that is twenty (20) business days following the commencement of amended, the Offer to (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange i) decrease the Offer Consideration forPrice, any Shares validly tendered on or prior (ii) change the consideration into a form other than cash, (iii) amend (other than to the expiration of the Offer and not withdrawn shall be subject to waive) the Minimum Condition and or the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange A, or (the “Offer to Exchange”iv) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) Offer; provided further, however, that if on the Initial Expiration Date (as it may initial scheduled expiration date of the Offer, which shall be extended)20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser Acquisition Sub may, from time to time, in its sole discretion, extend the Initial Expiration Dateexpiration date, for such period as the Purchaser may determineprovided, (y) the Purchaser mayhowever, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (as extended, shall be no later than December 31, 1998. Acquisition Sub shall, on the terms and not withdrawn) at least ninety percent (90%) subject to the prior satisfaction or waiver of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent conditions of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, accept for payment and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.1
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1its terms, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2Acquisition Sub shall, as promptly soon as practicable after the effectiveness date hereof, (but in no event later than five business days following the public announcement of the Form 10Offer), and in any event, within five (5) business days thereafter, the 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 (as such offer to purchase may be amended in accordance with the terms of this Agreement, the "Offer") all of the issued and outstanding Shares at a price of not less than $5.00 per Share, net to the seller in cash (less applicable withholding taxes, if any) (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). After the commencement of the Offer, the Offer and the obligation of Acquisition Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the conditions set forth in Annex A hereto and the condition that there being be validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Percentage"). Parent and no less than a majority of Acquisition Sub expressly reserve the voting power of the outstanding shares of capital stock of the Company entitled right to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements waive any condition set forth in Annex I. Subject A, to change the prior satisfaction form or waiver by amount payable per Share in the Purchaser Offer (including the Offer Price) and to make any other changes in the terms and conditions of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable lawOffer; provided, however, that without the initial expiration date prior written consent of the Offer Company, Parent shall not amend, or permit to be the date that is twenty (20) business days following the commencement of amended, the Offer to (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange i) decrease the Offer Consideration forPrice, any Shares validly tendered on or prior (ii) change the consideration into a form other than cash, (iii) amend (other than to the expiration of the Offer and not withdrawn shall be subject to waive) the Minimum Condition and or the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange A, or (the “Offer to Exchange”iv) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) Offer; provided further, however, that if on the Initial Expiration Date (as it may initial scheduled expiration date of the Offer, which shall be extended)20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser Acquisition Sub may, from time to time, in its sole discretion, extend the Initial Expiration Dateexpiration date, for such period as the Purchaser may determineprovided, (y) the Purchaser mayhowever, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (as extended, shall be no later than December 31, 1998. Acquisition Sub shall, on the terms and not withdrawn) at least ninety percent (90%) subject to the prior satisfaction or waiver of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent conditions of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, accept for payment and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.A-1
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in paragraphs (ii)(a) - (ii)(g) of Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, then as promptly as practicable after the effectiveness of the Form 10, date hereof (and in any event, event within five eight (5) 8) business days thereafterof the date of this Agreement), the Purchaser Merger Sub shall (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act")) an offer (the "Offer") to purchase any and all of the outstanding shares of Company Common Stock at a price per Share equal to the Per Share Amount, net to the seller in cash, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer Documents") with the Securities and Exchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the rules and regulations promulgated thereunder (disclosure required by Rule 14d-6 under the “Exchange Act”)) Act by complying with the Offer, dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Documents. The Offer shall be subject only to (i) the condition that there being shall be validly tendered in accordance with the terms of the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that Expiration Date (as hereinafter defined) a number of Shares whichthat, together with the Shares then beneficially owned by the PurchaserParent and/or Merger Sub or any other subsidiary of Parent, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of Fully-Diluted Basis (as hereinafter defined) (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject I hereto. Merger Sub expressly reserves the right to the prior satisfaction or waiver by the Purchaser waive any of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange make any change in the Offer Consideration for, any Shares validly tendered on terms of or prior conditions to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) Offer, provided that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company, (i) the Minimum Condition may not be waived, (ii) the condition to the Offer that the applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended (the "HSR Act") or under any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be waived, (iii) no change may be made that changes the form of consideration to be paid, decreases the Per Share Amount or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I and (iv) no other change may be made to any term of the Offer in any manner adverse to the holders of the Shares. For Notwithstanding the avoidance foregoing, except as otherwise provided in this Section 1.01(a), without the consent of doubt: the Company, Merger Sub shall have the right to extend the Offer, provided that such extension does not extend beyond the later of (x) if on July 31, 2003 and (y) the Initial date that is 30 days after the date that the Company has complied with its obligations under Section 6.03 (the "Outside Date") (i) from time to time if, at the scheduled or extended Expiration Date (as it may be extended)Date, all any of the conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for until such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one conditions are satisfied or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and waived or (ii) extend for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer to the extent otherwise or any period required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser Offer shall not terminate remain open until 12:00 midnight on the date that is twenty (20) business days after the commencement of the Offer prior to any scheduled expiration date (as the same may be "Expiration Date"), unless Merger Sub shall have extended or required to be extended) without the written consent period of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If time for which the Offer is terminated or withdrawn by open pursuant to, and in accordance with, the Purchaser, or terms of this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.as may be
Appears in 1 contract
Samples: Agreement and Plan of Merger (Elite Information Group Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.18, (ii) none of the events set forth in clauses (i)–(v) of Annex I (other than paragraphs (f) and (i)) hereto shall have occurred and be continuing (and shall not have been waived by Parent) and (iii) the Company shall have complied with its applicable obligations under Section 1.2, unless otherwise agreed by Parent and the Company, as promptly as reasonably practicable after the effectiveness public announcement of the Form 10execution of this Agreement, Parent shall or shall cause Merger Sub or NAH to commence (as defined in Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase each share of the Company’s common stock, par value $0.01 per share (“Company Common Stock”), issued and outstanding on the Acceptance Date, in exchange for, at the election of the holder thereof, and in any eventsubject to Section 1.5(b)(iv), within five (5i) business days thereafterfor each share of Company Common Stock with respect to which an election to receive cash has been effectively made and not revoked (a “Cash Election”), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934right to receive in cash from Parent, NAH or Merger Sub, as amendedapplicable, and the rules and regulations promulgated thereunder without interest, an amount equal to $61.25 (the “Exchange ActPer Share Cash Consideration”) or (ii) for each share of Company Common Stock with respect to which an election to receive common shares of Parent, €0.01 par value per share (“Parent Common Shares”)) the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) has been effectively made and not withdrawn prior revoked (a “Stock Election”), the right to receive from Parent, NAH or Merger Sub, as applicable, 3.545 Parent Common Shares, and any cash to be paid in lieu of fractional Parent Common Shares pursuant to this Agreement (the expiration of the Offer that number of Shares which“Per Share Stock Consideration” and, together with the Shares then beneficially owned by the PurchaserPer Share Cash Consideration, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote as determined in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectivelyaccordance with Section 1.5, the “Minimum ConditionConsideration”) ); and (iiiii) the satisfaction for each share of Company Common Stock other than shares as to which a Cash Election or waiver of the other conditions a Stock Election has been effectively made and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex Inot revoked (“Non-Election Shares”), the Purchaser shall consummate the Offer right to receive from Parent such Per Share Stock Consideration and/or Per Share Cash Consideration as is determined in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof1.5.
Appears in 1 contract
The Offer. (a) Provided that (i) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, (ii) 8.01 and that none of the events set forth in Annex I clause (other than paragraphs (fiii) and (i)) of Exhibit A hereto shall have occurred or be existing, Purchaser shall, and be continuing and (iii) the Company Parent shall have complied with its applicable obligations under Section 1.2cause Purchaser to, as promptly as practicable after (but in no event later than seven business days following the effectiveness public announcement of the Form 10, and in any event, within five (5terms of this Agreement) business days thereafter, the 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 amended (the “Exchange Act”"EXCHANGE ACT")) an offer to purchase all outstanding shares of common stock of the Company, par value $.01 per share (the "SHARES"), at a price (such price, or any higher price as may be paid in the Offer, the "OFFER PRICE") of $49.00 per Share, net to the seller in cash (the "OFFER"). The obligation of Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant thereto shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other only those conditions and requirements set forth in Annex I. Subject to Exhibit A hereto (the "OFFER CONDITIONS"), any of which may be waived by Purchaser in its sole discretion; provided that the Minimum Tender Condition (as defined in Exhibit A) may not be waived without the prior satisfaction or waiver by the Purchaser written consent of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the Company. The initial expiration date of the Offer shall be the date that is twenty (20) twentieth business days day following the commencement of the Offer (determined in accordance with Rule 14d-1(e)(6) under the “Initial Expiration Date”Exchange Act). The obligation Purchaser expressly reserves the right to modify the terms of the Purchaser to accept for exchangeOffer, and to exchange the Offer Consideration forexcept that, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For , Purchaser shall not (A) decrease or change the avoidance form of doubt: the consideration payable in the Offer, (xB) if on decrease the Initial Expiration Date number of Shares sought pursuant to the Offer, (as it may be extended), all C) impose additional conditions to the Offer, (D) make any other change in the terms or conditions of the Offer shall not have been satisfied that is adverse to the holders of Shares, it being agreed that neither a waiver by Purchaser of any of the Offer Conditions (other than the Minimum Tender Condition) in whole or waived, the Purchaser may, from in part at any time to time, in its sole discretion, extend nor the Initial Expiration Dateextension of the Offer as permitted below, for such period shall be deemed to be adverse to the holders of Shares, or (E) except as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretionprovided below, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofExpiration Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (National Discount Brokers Group Inc)
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I hereto (other than paragraphs (f) and the conditions described in Paragraphs (i), (ii) shall have occurred and be continuing ----- - and (iii) the Company shall have complied with its applicable obligations under Section 1.2of Annex I), as promptly as practicable after the effectiveness of the Form 10date hereof, and but in any event, within five ----- - no event later than seven (57) business days thereafterfollowing the public announcement of the terms of this Agreement, the Merger Sub shall, and Purchaser shall cause Merger Sub to, commence (within the meaning Offer at a price of Rule 14d-2 under $18.25 per share of Company Common Stock, net to the Securities Exchange Act stockholders of 1934, as amended, and the rules and regulations promulgated thereunder Company in cash (the “Exchange Act”"Offer Price")) the Offer, . The ----- ----- Offer shall be subject only to (i) the condition that there being shall be validly tendered in accordance with the Offer (in terms of the aggregate) and not withdrawn Offer, prior to the expiration date of the Offer that and not withdrawn, a number of Shares whichshares of Company Common Stock that, together with the Shares shares of Company Common Stock then beneficially owned by the PurchaserPurchaser and/or Merger Sub, represents at least a majority of the Shares shares of Company Common Stock outstanding on a fully fully-diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”) "), and (ii) the satisfaction or waiver of the ------- --------- other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of I hereto (collectively with the Minimum Condition and the other conditions and requirements set forth in Annex I----- - Condition, the Purchaser shall consummate "Offer Conditions"). Merger Sub expressly reserves the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant right to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date ----- ---------- waive any of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, Conditions and to exchange make any change in the terms or Offer Consideration forConditions, any Shares validly tendered on provided that, no change or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall waiver may be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreementthat, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the -------- ---- prior written consent of the Company. For , waives or changes the avoidance of doubt: Offer Conditions described in Paragraphs (x) if on the Initial Expiration Date (as it may be extendedi), all (ii), (iv)(a) or (h) of Annex I hereto, changes the ----- - form of consideration to be paid in the Offer, decreases the Offer Price or the number of shares of Company Common Stock sought in the Offer, imposes conditions to the Offer shall not have been satisfied in addition to those set forth in Annex I hereto or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would is otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer ----- - materially adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent stockholders of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (PPLC Acquisition Corp)
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2A hereto, as promptly as practicable after the effectiveness date hereof (but in no event later than five business days from the public announcement of the Form 10, and in any event, within five (5) business days thereafterexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")), an offer (the "Offer") to purchase for cash any and all of the issued and outstanding shares of (i) Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock") at a price of $35.00 per Common Share, net to the seller in cash (such price, or such higher price per Common Share as may be paid in the Offer, subject being referred to (i) there being validly tendered in herein as the "Common Offer (in Price," provided that Purchaser shall not be required to increase the aggregate) and not withdrawn prior to the expiration of the Common Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Price) and (ii) the satisfaction or waiver Class A Common Stock, par value $0.01 per share, of the other conditions Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and requirements set forth Xxxxxx Trust and Savings Bank, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in Annex I. Subject cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The Purchaser shall, on the terms and subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions of the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser it is legally permitted to do so under applicable law; providedprovided that, howeverif the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that the initial expiration date of all conditions to the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)first have been satisfied or waived. The obligation obligations of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, pay for any and all Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition Condition") and the other conditions and requirements set forth in Annex I. A hereto. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. A hereto. The Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, or impose any additional conditions to be purchased in the Offer, or amend any term of the Offer in any manner adverse to the holders of the Shares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the CompanyCompany (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). For Notwithstanding the avoidance foregoing, the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of doubt: (xSection 7.01(b)(i) if on hereof if, and to the Initial Expiration Date (as it may be extended)extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer shall have not have been satisfied or waived. In addition, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser Offer Price may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act be increased and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise may be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company. In the event of any increase in the Common Offer Price, except the Class A Offer Price will be increased by an equal amount, and in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares any increase in the OfferClass A Offer Price, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofCommon Offer Price will be increased by an equal amount.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in paragraphs (ii)(a) - (ii)(g) of Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, as promptly as practicable after the effectiveness of the Form 10, date hereof (and in any eventevent within eight (8) Business Days of the date of this Agreement), within five Merger Subsidiary shall (5A) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act 1934 Act) an offer (the "OFFER") to purchase any and all of 1934the outstaxxxxx Xxares at a price of $9.00 per Share, as amendednet to the seller in cash and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") and all other necessary documents with the SEC (collectively, the "OFFER DOCUMENTS"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the 1934 Act, and publish, send or give the rules and regulations promulgated thereunder (disclosure required by Rule 14d-6 under the “Exchange Act”)) 1934 Act by complying with the dissemination requirements of Rule 14d-4 under the 1934 Act in each case in connection with the Offer Documents. The Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer that and not withdrawn, a number of Shares whichthat, together with the Shares then beneficially owned by the PurchaserParent and/or Merger Subsidiary or any other Subsidiary of Parent, represents at least a majority of the Shares outstanding on a fully fully-diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”"MINIMUM CONDITION") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject I hereto. Merger Subsidiary expressly reserves the right to the prior satisfaction or waiver by the Purchaser waive any of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange make any change in the Offer Consideration for, any Shares validly tendered on terms of or prior conditions to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) Offer, provided that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For , (i) the avoidance of doubt: Minimum Condition may not be waived, (xii) if on the Initial Expiration Date (as it no change may be extended)made that changes the form of consideration to be paid, all decreases the price per Share or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I and (iii) no other change may be made to any term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, without the consent of the Company, Merger Subsidiary shall have the right to extend the Offer (i) from time to time 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 or (ii) for any period required by any rule, regulation, interpretation or position of the Purchaser may, from time SEC or the staff thereof applicable to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for or any reason on one or more occasions for an aggregate period of not more than ten required by applicable law. The Offer shall remain open until the date that is twenty (1020) business days beyond Business Days after the latest expiration date commencement of the Offer that would otherwise be permitted under clause (x) the "EXPIRATION DATE"), unless Parent shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the terms of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser Agreement or as may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise be required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offerwhich event, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.term "
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) Article VIII and (i)) no event shall have occurred and be continuing and (iii) that, had the Company shall have complied with its applicable obligations under Section 1.2Offer been commenced, as promptly as practicable after would give rise to a right to terminate the effectiveness Offer pursuant to any of the Form 10conditions set forth in Exhibit A hereto (the “Offer Conditions”) (other than the Minimum Condition and condition (b) on Exhibit A hereto), Merger Sub shall, and in any eventParent shall cause Merger Sub to, within five (5) business days thereafter, the Purchaser shall use commercially reasonable efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) not later than three (3) Business Days following the Offerdate hereof (and in any event Merger Sub shall, subject and Parent shall cause Merger Sub to, commence not later than five (5) Business Days following the date hereof), an offer to (i) there being validly tendered in purchase all outstanding Common Shares at the Offer (in the aggregate) Price. The obligations of Merger Sub, and not withdrawn prior of Parent to the expiration of the Offer that number of Shares whichcause Merger Sub, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for any Common Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition satisfaction or waiver by Merger Sub of the Offer Conditions and the other terms and conditions and requirements set forth hereof. Merger Sub expressly reserves the right, in Annex I. The its sole discretion, to waive any Offer shall be made by means of an offer Condition, in whole or in part, at any time or from time to exchange (the “Offer time, or to Exchange”) that contains modify the terms set forth in this Agreementor conditions of the Offer, except that, without the Minimum Condition and written consent of the other conditions and requirements set forth in Annex I. The Purchaser Company, Merger Sub shall not decrease (i) reduce the Offer ConsiderationPrice, (ii) change the form of consideration payable in the Offer or (other than by adding consideration), (iii) reduce the maximum number of Common Shares subject to be purchased in the Offer without Offer, (iv) waive or change the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date Minimum Condition (as it may be extendeddefined in Exhibit A), all conditions (v) add to the Offer shall not have been satisfied or waivedConditions, the Purchaser may, from time to time, in its sole discretion, (vi) extend the Initial Expiration Date, for such period expiration of the Offer except as required or permitted by Section 1.1(b) or (vii) modify any Offer Condition or any term of the Purchaser may determine, (y) Offer set forth in this Agreement in a manner adverse to the Purchaser holders of Common Shares. Either Parent or Merger Sub may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole absolute discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If increase the Offer is terminated or withdrawn Price, in which case the Offer shall be extended, without the consent of the Company, as required by applicable Law. The Company agrees that no Common Shares held by the Purchaser, Company or this Agreement is terminated prior to the exchange any of Shares its Subsidiaries will be tendered in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that (i) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, (ii) 8.01 and that none of the events set forth in Annex I clause (other than paragraphs (fiii) and (i)) of Exhibit A hereto shall have occurred or be existing, Purchaser shall, and be continuing and (iii) the Company Parent shall have complied with its applicable obligations under Section 1.2cause Purchaser to, as promptly as practicable after (but in no event later than five business days following the effectiveness public announcement of the Form 10, and in any event, within five (5terms of this Agreement) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act")) an offer to ------------ purchase all outstanding shares of common stock of the Company, par value $0.001 per share (the "Common Stock"), including the associated Common Stock purchase ------------ rights (the "Rights") issued pursuant to the Rights Agreement dated as of August ------ 4, 1998 (the "Rights Agreement") between the Company and Firstar Bank Milwaukee, ---------------- N.A. (formerly named Firstar Trust Company), as Rights Agent (the Common Stock and the rules and regulations promulgated thereunder Rights are hereinafter referred to as the "Shares"), at a price (the “Exchange Act”)) such ------ price, or any higher price as may be paid in the Offer, the "Offer Price") of ----------- $5.05 per Share, net to the seller in cash (the "Offer"). The obligation of ----- Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant thereto shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other only those conditions and requirements set forth in Annex I. Subject to Exhibit A hereto (the prior satisfaction or waiver "Offer Conditions"), any of which may be waived ---------------- by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the sole discretion. The initial expiration date of the Offer shall be the date that is twenty (20) first business days day following the commencement of the Offer (determined in accordance with Rule 14d-1(e)(6) under the “Initial Expiration Date”Exchange Act). The obligation Purchaser expressly reserves the right to modify the terms of the Purchaser to accept for exchangeOffer, and to exchange the Offer Consideration forexcept that, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For , Purchaser shall not (A) decrease or change the avoidance form of doubt: the consideration payable in the Offer, (xB) if on decrease the Initial Expiration Date number of Shares sought pursuant to the Offer, (as it may be extended)C) impose additional conditions to the Offer, all (D) change the conditions to the Offer shall not have been satisfied or waived, (E) make any other change in the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one terms or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date conditions of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer which is materially adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent holders of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofShares.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Technologies Corp /De/)
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, Merger Subsidiary shall, as promptly as practicable after the effectiveness of the Form 10date hereof, and but in any event, within five no event later than one business day (5as defined in Rule 14b-1(c)(6) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 promulgated under the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) following the execution of this Agreement, issue a public announcement of the execution of this Agreement and as promptly as practicable thereafter, but in no event later than five business days following such public announcement, commence an offer (the "Offer") to purchase all of the outstanding shares of common stock, par value $.01 per share (the "Shares"), of the Company at a price of $5.50 per Share, net to the seller in cash. The initial expiration date (the "Initial Expiration Date") of the Offer shall be 20 business days following the commencement of the Offer, . The Offer shall be subject to (i) the condition that there being shall be validly tendered in accordance with the terms of the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer that and not withdrawn a number of Shares which, together with the Shares then beneficially owned by the PurchaserParent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. Parent and Merger Subsidiary expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of the Offer; provided that, without the prior written consent of the Company, no change may be made which (i) except as provided in the next sentence, extends the Offer, (ii) changes the form of consideration to be paid, (iii) decreases the price per Share or the number of Shares sought in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex I, (v) changes or waives the Minimum Condition, or (vi) makes any other change to any condition to the Offer set forth in Annex I which is materially adverse to the holders of Shares. Notwithstanding the foregoing, Merger Subsidiary may, without the consent of the Company, (i) extend the Offer, if at any scheduled expiration date of the Offer any of the conditions to Merger Subsidiary's obligation to purchase Shares pursuant to the Offer shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (ii) extend the Offer for a period of not more than 20 business days beyond the Initial Expiration Date, if on a fully diluted basis and no the date of such extension less than a majority 90% of the voting power Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer, and (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the outstanding shares of capital stock Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. Parent and Merger Subsidiary agree that if all of the Company entitled conditions to vote Merger Subsidiary's obligation to purchase Shares pursuant to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Merger Subsidiary shall extend the Offer from time to time in increments of at least five business days each until the election earliest to occur of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (iix) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and or such other condition, (y) the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer termination of this Agreement in accordance with its terms and (z) December 1, 1999. Subject to the terms of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions of the Offer, Merger Subsidiary shall accept for exchange, and exchange the Offer Consideration for, payment all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) 9.1 and none of the events set forth in Annex I (other than paragraphs (f) and (i)) Exhibit A hereto shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2continuing, as promptly as practicable after the effectiveness of the Form 10, and in any event, event within five (5) 7 business days thereafterof the date hereof, the 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 (the "Offer") to purchase all Company Common Shares at a price of $62.00 per Company Common Share, net to the seller in cash (such price, or the highest of any price per Company Common Share as may be paid in the Offer, subject being referred to (i) there being validly tendered in herein as the "Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”Price"). The obligation obligations of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, any pay for Company Common Shares validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of Company Common Shares which, together with the Company Common Shares beneficially owned by the Parent or the Purchaser or any of their Subsidiaries, represents at least two-thirds of the Company Common Shares then issued and outstanding on a Fully-Diluted Basis (the "Minimum Condition Condition") and (ii) the other conditions and requirements set forth in Annex I. Exhibit A hereto. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the CompanyExhibit A hereto. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof."
Appears in 1 contract
Samples: Acquisition Agreement and Agreement and Plan of Merger (Sears Roebuck & Co)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as As promptly as practicable after (but in no event later than five business days from the effectiveness public announcement of the Form 10, and in any event, within five (5) business days thereafterexecution hereof), the 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 amended (the “"Exchange Act”")), an offer (the "Offer") to purchase for cash any and all of the issued and outstanding shares of Common Stock, par value $0.20 per share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company at a price of $20.00 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). The Purchaser shall, on the terms and subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions of the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser it is legally permitted to do so under applicable law; providedprovided that, howeverif the number of Shares that have been physically tendered and not withdrawn are more than 80% but less than 90% of the outstanding Shares determined on a fully diluted basis, the Purchaser may extend the Offer for up to five business days and thereafter on a day-to-day basis for up to an additional five business days from the date that the initial expiration date of all conditions to the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)first have been satisfied or waived. The obligation obligations of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, pay for any and all 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 prior to the expiration of the Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition Condition") and the other conditions and requirements set forth in Annex I. A hereto. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. A hereto. The Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, or amend any other term or condition of the Offer in any manner adverse to be purchased in the holders of the Shares or extend the expiration date of the Offer without the prior written consent of the CompanyCompany (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). For Notwithstanding the avoidance foregoing, the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until February 23, 1998 if, and to the extent that, at the initial expiration date of doubt: (x) if on the Initial Expiration Date (as it may be extended)Offer, or any extension thereof, all conditions to the Offer shall have not have been satisfied or waived. In addition, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser Offer Price may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act be increased and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise may be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Texas Instruments Inc)
The Offer. (a) Provided Subject to the Provisions of this Agreement, provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2Article Seven hereof, as promptly as practicable after the effectiveness of the Form 10reasonably practicable, and but in any eventevent within 10 Business Days, within five (5) business days thereafterafter receiving all Pre-Offer Required Approvals from the corresponding Governmental Authorities to initiate the Offer, the Purchaser (i) shall commence (within the meaning of Rule 14d-2 under Article 98 of the Mexican Securities Law, as amended and the corresponding legal dispositions of the U.S. Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder thereunder, collectively the “Securities Laws”)) a public offer (the “Exchange ActOffer”) to purchase up to 100% (one hundred percent) of the outstanding shares of the Company’s common stock, full voting rights, without par value (the “Common Shares”), regardless whether such shares of the Company are represented by (i) Certificados de Participación Ordinarios (“CPO”) issued by Nacional Financiera, S.N.C. in connection with the Neutral Investment Trust No. 80526 dated October 17, 2007, each CPO representing 3 (three) shares of the Company, (ii) American Depositary Shares (“ADS”) evidenced by American Depositary Receipts (“ADR”), each ADR representing 7 (seven) CPOs, (iii) Common Shares certificates or (iv) any other form of security which underlying value are shares of the Company (collectively, the “Company Shares”) at the Offer Price, file all necessary documents with the Comisión Nacional Bancaria y de Valores (the “CNBV”) and the U.S. Securities and Exchange Commission (the “SEC”), publish and distribute an Offer to Purchase (the “Offer to Purchase”) and make all deliveries, mailings and notifications required by the Securities Laws (collectively, with the Offer to Purchase, the “Offer Documents”), in connection with the Offer; and (ii) shall consummate the Offer, subject to (i) there being validly tendered in the Offer (in terms and conditions thereof and the aggregate) terms and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption conditions of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Recapitalization Agreement (Ventura Capital Privado, S.A. De C.V.)
The Offer. (a) Provided that (i) this Agreement shall has not have been terminated in accordance with Section 8.1, (ii) pursuant to Article VIII hereof and that none of the events set forth in Annex I Exhibit A hereto (other than paragraphs (f) and (i)the "Offer Conditions") shall have occurred and be continuing continuing, as soon as is reasonably practicable (but no later than the fifth business day after the public announcement by Parent and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10execution and delivery of this Agreement (counting the business day on which such announcement is made)), and in any event, within five (5) business days thereafter, the 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 amended (the “"Exchange Act”")), an offer (the "Offer") to purchase all outstanding Shares, including the associated Rights, at a price of $29.00 per share, net to the seller in cash (as paid pursuant to the Offer, subject to (i) there being validly tendered in the "Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”Consideration"). The obligation of Parent and Purchaser to commence the Purchaser Offer, to consummate the Offer and to accept for exchange, payment and to exchange the Offer Consideration for, any pay for Shares validly tendered on or prior to the expiration of in the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer Exhibit A hereto. Purchaser expressly reserves the right, in its sole discretion, to exchange waive any such condition (the “Offer to Exchange”) that contains the terms set forth in this Agreement, other than the Minimum Condition as defined in the Offer Conditions) and make any other changes in the other terms and conditions and requirements set forth of the Offer, PROVIDED that, unless previously approved by the Company in Annex I. The Purchaser shall not decrease writing, no change may be made which changes the Minimum Condition or decreases the Offer Consideration, change changes the form of consideration payable in the Offer or reduce (other than by adding consideration), reduces the maximum number of Shares to be purchased in the Offer without Offer, or amends the prior written consent terms or the conditions of the Company. For Offer in a manner which is adverse to the avoidance holders of doubt: (x) if on the Initial Expiration Date (as it may be extended)Shares, all or which imposes conditions or terms to the Offer shall not have been satisfied or waived, the Purchaser may, from time in addition to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofthose set forth herein.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement Parent shall not have been terminated in accordance with Section 8.1cause Purchaser to, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2Purchaser shall, as promptly soon as practicable after the effectiveness date hereof, but in any event within five business days after the public announcement of the Form 10execution hereof, and in any event, within five (5) business days thereafter, the Purchaser 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 promulgated thereunder amended (the “"Exchange Act”)") the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power for all of the outstanding shares of capital stock of Shares at a price equal to the Company entitled Per Share Amount, net to vote the sellers thereof in cash, 6 subject to the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to I hereto (the prior satisfaction or waiver by the Purchaser of "Offer Conditions") including the Minimum Condition (as defined therein) and the other conditions and requirements set forth in Annex I, the termination provisions of Section 8 hereof. Purchaser shall consummate the Offer in accordance with its on the terms and subject to the conditions provided in this Section 1.1. Subject to the terms and conditions of this Agreement, the obligation of Purchaser to accept for exchange, and exchange the Offer Consideration for, all payment Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and satisfaction or waiver by Purchaser of the other conditions and requirements set forth in Annex I. Offer Conditions. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, purchase which shall contain as conditions only the Minimum Condition and the other conditions and requirements set forth in Annex I. The I hereto, and, subject to the succeeding sentence, shall otherwise contain, and be entirely consistent with, the terms and conditions of the Offer as described in this Agreement. Each of Purchaser and Parent expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes to the terms of the Offer, provided that, without the consent of the Company, neither Parent nor Purchaser shall not decrease (i) amend or waive the Minimum Condition or the HSR Condition (as defined herein), (ii) amend any other condition of the Offer Considerationas set forth herein or in Annex I hereto, (iii) reduce the Per Share Amount, (iv) change the form of consideration payable to be paid in the Offer or (other than by adding cash consideration), (v) reduce the maximum number of Shares to be purchased in the Offer, or (vi) amend any other term of the Offer in a manner which, in the reasonable judgment of the Company, is adverse to the holders of Shares. The Per Share Amount shall be net to the sellers in cash, without interest, subject to reduction only for any applicable federal back-up withholding taxes. Notwithstanding the foregoing, Purchaser may, without the prior consent of the Company, subject to the Company's right to terminate this Agreement pursuant to Article 8, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond the then-scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then-scheduled expiration date of the Offer any of the conditions to Purchaser's obligation to accept for payment and pay for the Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived, and, at the request of the Company, Purchaser shall, subject to Parent's right to terminate this Agreement pursuant to Article 8, extend the Offer for additional periods up to but not later than September 30, 1998, unless the conditions not satisfied or earlier waived on the then-scheduled expiration date are one or more of the Minimum Condition or the conditions set forth in paragraphs (a), (c), (d) or (f) of Annex I hereto, provided that (x) if the only condition not satisfied is the Minimum Condition, the satisfaction or waiver of all other conditions shall have been publicly disclosed at least five business days before termination of the Offer and (y) if paragraph (a) or (f) of Annex I hereto has not been satisfied and the failure to so satisfy can be remedied, the Offer shall not be terminated unless the failure is not remedied within 30 calendar days after Parent has furnished the Company with written notice of such failure), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "Commission") or the staff thereof applicable to the Offer, and (iii) extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected without a meeting of the Company's stockholders in accordance with Section 253 of the Delaware General Corporation 7 Law (the "DGCL"). In addition, the Per Share Amount may be increased without the consent of the Company. For Subject to the avoidance terms of doubt: the Offer, including the Offer Conditions, Purchaser shall accept for payment and pay for all Shares duly tendered at the earliest time at which it is permitted to do so under applicable provisions of the Exchange Act; provided that, as set forth above, Purchaser shall have the right, in its sole discretion, to extend the Offer for up to five business days notwithstanding the prior satisfaction of the Offer Conditions, in order to attempt to satisfy the requirements of Section 253 of the DGCL. It is agreed that the Offer Conditions other than the Minimum Condition and the condition relating to the termination or expiration of applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (xthe "HSR Act") if on (the Initial Expiration Date (as it "HSR Condition") are solely for the benefit of Purchaser and may be extended)asserted by Purchaser regardless of the circumstances resulting in a condition not being satisfied (except for any action or inaction by Purchaser or Parent constituting a breach of this Agreement) or, all conditions except with respect to the Offer shall not have been satisfied Minimum Condition and the HSR Condition, may be waived by Purchaser, in whole or waived, the Purchaser may, in part at any time and from time to time, in its sole discretion, extend . On the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of commencement of the Offer, Parent and Purchaser, with the cooperation of, and prior review thereof by, the Company, shall file with the Commission a Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer that would otherwise be permitted under clause will contain or will incorporate by reference the Offer (xor portions thereof) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) forms of the outstanding Shares on a fully diluted basisrelated letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Purchaser may (i) increase Schedule 14D-1, and all amendments and supplements thereto, shall comply as to form in all material respects with the provisions of all applicable federal securities laws. Purchaser, and the Company with respect to information supplied by it for use in the Schedule 14D-1 or the Offer Consideration and extend Documents, agree promptly to correct the Schedule 14D-1 or the Offer Documents if and to the extent that any of them shall have become false or misleading in any material respect or any event occurs which should be set forth in an amendment or supplement to the Schedule 14D-1, and Purchaser shall take all steps necessary to cause the Schedule 14D-1 as so corrected or supplemented to be filed with the Commission and such Offer Documents as so corrected to be disseminated to holders of Shares and any other holders of securities of the Company (if any), in each case as and to the extent required by applicable law federal securities laws. In addition, Parent and Purchaser agree to promptly provide the Company and its counsel in connection writing with such increase and (ii) extend any comments Parent, Purchaser or their counsel may receive from time to time from the Offer to the extent otherwise required by applicable law, in each case in SEC or its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofstaff.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Donnelley Enterprise Solutions Inc)
The Offer. 1.1 (a) Provided that (i) Subject to the provisions of this Agreement, and provided this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none 10.1 hereof and that nothing shall have occurred that would result in a failure to satisfy any of the events conditions set forth in Annex I (other than is paragraphs (fa) and (i)b) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2of Annex I hereto, Merger Sub shall, as promptly as practicable after the effectiveness date hereof, but in no event later than five business days following the date of public announcement of the Form 10execution of this Agreement, and in any event, within five (5) business days thereafter, the 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 amended (the “Exchange Act”"1934 ACT")) the Offer at a price of $2.75 per Share, net to the seller in cash, without interest and less any required transfer and withholding taxes. The Offer shall be subject to the condition that there shall be validly tendered (and not withdrawn) in accordance with the terms of the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration date of the Offer Offer, at least that number of Shares which(not including Shares tendered by Parent, together with Merger Sub or any affiliate of Parent), which is the smallest number of Shares then beneficially owned by the Purchaser, that represents at least a majority of the outstanding Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption excluding for purposes of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, calculation all Shares owned by Parent, Merger Sub or any affiliate of Parent and any Shares held in Intek employee stock plans that cannot be tendered pursuant to the terms of those plans) (the "MINIMUM CONDITION"), and to the other conditions set forth herein and in Annex I hereto. Notwithstanding the foregoing, Merger Sub expressly reserves the right to waive any of the conditions to the Offer as soon as practicable after and to make any change in the Purchaser is legally permitted to do so under applicable lawterms or conditions of the Offer; providedPROVIDED, howeverHOWEVER, that without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition or make any change in the Offer that changes the form of the Offer or of the consideration or decreases the price per share, except as provided in Section 2.7 hereof, or that imposes conditions to the Offer in addition to those set forth herein and in Annex I hereto, or that is otherwise materially adverse to the holders of Shares (other than Parent and its affiliates). The Offer shall expire at midnight on the expiration date. The initial scheduled expiration date of the Offer shall be the date that is twenty (20) 20 business days following the date of commencement of the Offer (the “Initial Expiration Date”)Offer. The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, If on any Shares validly tendered on or prior to the scheduled expiration date of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offer shall not have been satisfied or waived, Merger Sub shall extend the Purchaser may, Offer from time to time, in its sole discretion, extend the Initial Expiration Date, for time until such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, conditions have been satisfied or waived; PROVIDED that Merger Sub shall have no obligation to extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest date 60 days after commencement of the Offer, nor shall it have the right to extend the Offer beyond the date 60 days after commencement of the Offer without the prior written consent of the Company (except pursuant to the next sentence). If on any scheduled expiration date of the Offer that would otherwise be permitted under clause all conditions to the Offer (xincluding the Minimum Condition) shall have been satisfied but the sum of this sentence if, on such expiration date, there have not been (i) the number of Shares tendered (and not withdrawn) at least ninety percent pursuant to the Offer plus (ii) the number of Shares held by Parent, Merger Sub or any other affiliate of Parent that have not been tendered pursuant to the Offer, including Shares issuable to any of them upon conversion of Series A Preferred Shares and convertible debt of the Company held by any of them, represent less than 90%) % of the outstanding Shares on a fully fully-diluted basis. The Purchaser may basis (i) increase except that unexercised Options shall not be treated as outstanding for this purpose), Merger Sub shall also have the Offer Consideration and right to extend the Offer from time to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and time without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except Company (for not more than an aggregate of 10 business days) in order to permit Merger Sub to solicit the event that tender of additional Shares pursuant to the Offer. Notwithstanding anything to the contrary set forth in this Agreement is terminated pursuant to Section 8.1. If or in Annex I, if the Offer is terminated or withdrawn by extended in accordance with the Purchaserforegoing following satisfaction of the Minimum Condition, or this Agreement is terminated prior the Minimum Condition shall be deemed to remain satisfied regardless of any withdrawal of previously tendered shares during the extension period. Subject to the exchange foregoing and to the terms and conditions of Shares in the Offer, Merger Sub agrees to pay, as promptly as reasonably practicable after the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf expiration of the PurchaserOffer, to return for all Shares properly tendered Shares and not withdrawn pursuant to the registered holders thereofOffer that Merger Sub is obligated to purchase.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, Merger Subsidiary shall, as promptly as practicable after the effectiveness date hereof, but in no event later than five business days following the public announcement of the Form 10terms of this Agreement, commence an offer (the "Offer") to purchase all of the outstanding shares (the "Shares") of common stock, $0.01 par value per share, of the Company (the "Common Stock") and in any event, within five the associated rights to purchase Shares (5the "Rights") business days thereafter, issued pursuant to the Purchaser shall commence (within Rights Agreement between the meaning of Rule 14d-2 under the Securities Exchange Act of 1934Company and Harris Trust and Savings Bank, as amendedRights Agent, and the rules and regulations promulgated thereunder dated as of Nxxxxxxr 23, 1994 (the “Exchange Act”"Rights Agreement") at a price of $20.50 per Share (and associated Right)) , net to the Offer, seller in cash. The Offer shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer condition that a number of Shares which, together with the Shares then beneficially owned by the PurchaserBuyer, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer be validly tendered in accordance with its the terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration date of the Offer and not withdrawn shall be subject (the "Minimum Condition") and to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means I hereto. Without the consent of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this AgreementCompany, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser Merger Subsidiary shall not decrease the Offer Consideration, (i) change the form of consideration payable in to be paid, (ii) decrease the Offer or reduce price per Share, (iii) decrease the maximum number of Shares to be purchased sought in the Offer, (iv) waive the Minimum Condition, (v) impose conditions to the Offer in addition to those set forth in Annex I or (vi) otherwise amend the terms and conditions of the Offer in a manner adverse to the stockholders of the Company. Notwithstanding the foregoing, Merger Subsidiary may, without the prior written consent of the Company. For , (i) extend the avoidance Offer, if at any scheduled or extended expiration date of doubt: the Offer any of the Offer Conditions shall not be satisfied and waived, (xii) if on extend the Initial Expiration Date offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (as it may be extended), all conditions the "SEC") or the staff thereof applicable to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such any period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act required by applicable law and (ziii) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) 10 business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (xi) or (ii) of this sentence ifsentence, if on such expiration date, date there shall not have not been tendered (and not withdrawn) at least ninety percent (90%) % of the outstanding Shares on a fully diluted basisShares. The Purchaser may (i) increase Buyer and Merger Subsidiary further agree that in the event of the failure of one or more of the conditions to the Offer Consideration and to be satisfied or waived on any date on which the Offer would otherwise have expired, Merger Subsidiary shall, if such condition could reasonably be expected to be satisfied, extend the Offer for a reasonable period time, provided that Merger Subsidiary shall not be required to the extent required by applicable law in connection with such increase and (ii) extend the Offer beyond October 31, 1998. The initial expiration date of the Offer shall be 20 business days following the commencement of the Offer. On the terms of the Offer and subject to the extent otherwise required by foregoing, Merger Subsidiary shall pay for all Shares in accordance with applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Apb Acquisition Corp)
The Offer. (a) Provided that (i) this Agreement nothing shall not have been terminated occurred --------- that would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2hereto, Merger Subsidiary shall, as promptly as practicable after the effectiveness date hereof, but in no event later than five business days following the public announcement of the Form 10terms of this Agreement, and in any event, within five (5) business days thereafter, the 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 an offer (the “Exchange Act”)"OFFER") to purchase all of the Offeroutstanding shares (the "SHARES") of common stock, $0.01 par value per share, of the Company (the "COMMON STOCK") at a price of $16.25 per Share, net to the seller in cash. The Offer shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer condition that a number of Shares which, together with the Shares then beneficially owned by the PurchaserBuyer, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer be validly tendered in accordance with its the terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration date of the Offer and not withdrawn shall be subject (the "MINIMUM CONDITION") and to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer I hereto. Merger Subsidiary expressly reserves the right to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, waive the Minimum Condition and or any of the other conditions to the Offer and requirements to make any change in the terms or conditions of the Offer; provided that 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 Offer in addition to those set forth in Annex I. The Purchaser shall not decrease I or amends the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all terms and conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on in a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer manner adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Compaq Computer Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.27.1, as promptly as practicable after the effectiveness of the Form 10, and (but in any event, within five no event later than seven (57) business days thereafterafter the public announcement of the execution hereof), the 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, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”)") ) an offer (the "Offer") to purchase for cash all of the Shares (and associated Rights) at a price of $22.00 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior only to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject A hereto; provided, however, that Parent may -------- ------- designate another wholly owned, direct or indirect subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(g) under the Exchange Act) in the Offer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The Company shall not tender Shares held by it or by any of its subsidiaries pursuant to the Offer. The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions to the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser it is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, Agreement and only the Minimum Condition and the other conditions and requirements set forth in Annex I. A hereto and providing for an initial expiration date (the "Expiration Date") of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement. The Purchaser shall not, and Parent shall cause the Purchaser not to, decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, amend the conditions to be purchased in the Offer set forth in Annex A or impose conditions to the Offer in addition to those set forth in Annex A, without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offer shall not have been satisfied or waived, the The Purchaser may, from time to time, in its sole discretion, extend without the Initial Expiration Date, for such period as consent of the Purchaser may determineCompany, (yA) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on the shortest time periods which it reasonably believes are necessary, but in no event more than an additional forty (40) days, in one or more occasions for an aggregate period periods of not more than ten (10) business days beyond the latest expiration date days, if Parent and Purchaser are not in material breach of this Agreement and if any condition to the Offer that would otherwise be permitted under clause is not satisfied or waived and such condition is reasonably capable of being satisfied and (xB) of this sentence if, on such expiration datethe Expiration Date, there have not been the Shares validly tendered (and not withdrawn) withdrawn pursuant to the Offer equal at least seventy-five percent (75%) of the outstanding Shares but less than ninety percent (90%) of the outstanding Shares (on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and , as such term is defined in Annex A), extend the Offer on one occasion for up to ten (10) business days notwithstanding that all the conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer (other than in the case of paragraph (a) of Annex A hereto the occurrence of any statute, rule, regulation, judgment, order or preliminary or permanent injunction making illegal or prohibiting the consummation of the Offer) that subsequently may not be satisfied during any such extension of the Offer. 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. On the date the Offer is commenced, Parent and Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO"). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the "Offer Documents"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and Purchaser shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable law federal securities laws. Each of Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by it for use in connection with such increase and (ii) extend the Offer Documents if and to the extent otherwise required by applicable lawthat it shall have become false and misleading in any material respect and the Purchaser further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case in its sole discretion as and without to the Company’s consentextent required by applicable federal securities laws. The Purchaser Company and its counsel shall not terminate be given an opportunity to review and comment upon the Offer prior to Schedule TO (and shall provide any scheduled expiration date (comments thereon as the same may be extended or required to be extendedsoon as practicable) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in filing thereof with the OfferSEC. In addition, the Purchaser shall promptly returnParent shall, and shall cause the Purchaser to, provide the Company and its counsel in writing with any depository comments that Parent, Purchaser or exchange agenttheir counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and with copies of any written responses and telephonic notification of any verbal responses by Parent, including the Exchange Agent, acting on behalf Purchaser or their counsel. Parent shall provide or cause to be provided to Purchaser all of the Purchaser, funds necessary to return all tendered purchase any Shares that Purchaser becomes obligated to purchase pursuant to the registered holders thereofOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berkshire Hathaway Inc)
The Offer. (a) Provided that (i) Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.27.1, as promptly as practicable after the effectiveness date hereof, but in no event later than ten (10) Business Days following the public announcement of the Form 10execution of this Agreement in accordance with the terms of this Agreement, Parent and in any event, within five (5) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “"Exchange Act”")) the Offer, subject Offer to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power exchange all of the outstanding shares of capital stock of Company Common Stock for the Company entitled right to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectivelyreceive from Purchaser, for each Share validly tendered and not withdrawn, the “Minimum Condition”Offer Price payable in an amount of cash (the "Cash Consideration") and a number of validly issued, fully paid and nonassessable shares of Parent Common Stock (iithe "Stock Consideration") the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer each case determined in accordance with its terms Annex II hereof (such cash amount and number of shares of Parent Common Stock, the "Offer Consideration"). The obligation of Purchaser to accept for exchangepayment, and exchange the Offer Consideration pay for, all Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex I hereto (the "Offer Conditions") (any or all of which may be waived in whole or in part by Purchaser in its sole discretion other than the Minimum Condition, as soon defined below, or any Parent Stock Condition, as practicable after defined in Annex I hereto) and to the Purchaser is legally permitted to do so under applicable law; provided, however, that the terms and conditions of this Agreement. The initial scheduled expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If Business Days after the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offercommenced. As used herein, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.term "
Appears in 1 contract
The Offer. (a) Provided that that: (ix) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) Article V and (i)) shall have occurred and be continuing and (iiiy) the Company shall have complied with its applicable obligations under Section 1.21.3, as promptly as practicable after the effectiveness of the Form 10reasonably practicable, and in any eventevent within 10 days of the date of this Agreement, within five (5) business days thereafter, the Purchaser Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer, . The obligations of Parent to accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to the terms and conditions of this Agreement, including (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration satisfaction of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote Minimum Condition (as defined in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”0 hereto) and (ii) the satisfaction or waiver by Parent of each of the other conditions and requirements set forth in Annex I. Subject 0 hereto (together with the Minimum Condition, the “Offer Conditions”). Parent expressly reserves the right to (A) increase the prior satisfaction Offer Price, (B) waive any Offer Condition (other than the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or waiver by the Purchaser any of its Subsidiaries, would represent at least one Share less than 66.67% of the Minimum Condition number of Shares issued and outstanding, or the Antitrust Condition) or (C) modify any of the other terms or conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains inconsistent with the terms set forth in of this Agreement, except that, without the Minimum Condition and consent of the other conditions and requirements set forth in Annex I. The Purchaser Company, Parent shall not decrease (1) reduce the Offer ConsiderationPrice, (2) change the form of consideration payable in the Offer or (other than by adding cash consideration), (3) reduce the maximum number of Shares to be purchased sought in the Offer without or (4) add to the prior written consent Offer Conditions, (5) amend or modify any of the CompanyOffer Conditions in a manner that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of Parent to consummate the Offer, or (6) change or waive the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the number of Shares issued and outstanding, or the Antitrust Condition, (7) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(b) of this Agreement or (8) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, Company will procure that no Share held in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date treasury of the Offer that would otherwise be permitted under clause (x) Company or any of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated Subsidiaries immediately prior to the exchange of Shares in Acceptance Time (collectively, “Excluded Shares”) will be tendered pursuant to the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1commenced, (ii) none would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2A hereto, as promptly as practicable after the effectiveness date hereof (but in no event later than five business days from the public announcement of the Form 10, and in any event, within five (5) business days thereafterexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")), an offer (the "Offer") to purchase for cash any and all of the issued and outstanding shares of (i) Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock") at a price of $35.00 per Common Share, net to the seller in cash (such price, or such higher price per Common Share as may be paid in the Offer, subject being referred to (i) there being validly tendered in herein as the "Common Offer (in Price," provided that Purchaser shall not be required to increase the aggregate) and not withdrawn prior to the expiration of the Common Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Price) and (ii) the satisfaction or waiver Class A Common Stock, par value $0.01 per share, of the other conditions Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and requirements set forth Harris Trust and Savings Baxx, xxted as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in Annex I. Subject cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The Purchaser shall, on the terms and subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions of the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser it is legally permitted to do so under applicable law; providedprovided that, howeverif the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that the initial expiration date of all conditions to the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)first have been satisfied or waived. The obligation obligations of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, pay for any and all Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition Condition") and the other conditions and requirements set forth in Annex I. A hereto. The Offer shall be made by means of an offer to exchange purchase (the “"Offer to Exchange”Purchase") that contains containing the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. A hereto. The Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Consideration, change Price or decrease the form of consideration payable in the Offer or reduce the maximum number of Shares sought, or impose any additional conditions to be purchased in the Offer, or amend any term of the Offer in any manner adverse to the holders of the Shares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the CompanyCompany (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). For Notwithstanding the avoidance foregoing, the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of doubt: (xSection 7.1(b)(i) if on hereof if, and to the Initial Expiration Date (as it may be extended)extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer shall have not have been satisfied or waived. In addition, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser Offer Price may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act be increased and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise may be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer extended to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawincrease, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company. In the event of any increase in the Common Offer Price, except the Class A Offer Price will be increased by an equal amount, and in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares any increase in the OfferClass A Offer Price, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofCommon Offer Price will be increased by an equal amount.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with pursuant to Section 8.19.1 hereof, (ii) none following the public announcement of the events set forth in Annex I terms of this Agreement (other which public announcement shall occur no later than paragraphs (f) and (ithe first Business Day following the execution of this Agreement)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10not later than August 21, 2000, Purchaser shall, and in any eventParent shall cause Purchaser to, within five (5) business days thereafter, the 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 Act) a tender offer (the “Exchange Act”)"OFFER") to purchase any and all of the shares of Company Common Stock outstanding (including the related Rights) at a price of U.S.$11.00 per share, net to the seller in cash (such price, or such higher price pershare of Company Common Stock as may be paid in the Offer, being referred to herein as the "OFFER PRICE"). The Offer shall be subject to (i) the condition that there being shall be validly tendered in accordance with the Offer (in terms of the aggregate) and not withdrawn Offer, prior to the expiration date of the Offer that and not withdrawn, a number of Shares whichshares of Company Common Stock that, together with the Shares shares of Company Common Stock then beneficially owned by the Parent and/or Purchaser, represents at least a majority of the Shares shares of Company Common Stock outstanding on a fully fully-diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”"MINIMUM CONDITION") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)I hereto. The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange purchase (the “Offer "OFFER TO PURCHASE") and the related letter of transmittal, each in form reasonably satisfactory to Exchange”) that contains the Company, containing the terms set forth in this Agreement, the Minimum Condition Agreement and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease expressly reserves the right, subject to compliance with the Exchange Act, to waive any of the conditions to the Offer Consideration, and to make any change in the terms of or conditions to the Offer; PROVIDED that (i) the Minimum Condition may be waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration payable to be paid, decreases the Offer Price, decreases the number of shares of Company Common Stock sought in the Offer, adds to or modifies, in a manner adverse to the stockholders of the Company, the conditions to the Offer set forth in Annex I, or reduce the maximum number of Shares to be purchased (except as provided in the Offer next sentence) changes the expiration date of the Offer, without the prior written consent of the Company. For Without the avoidance consent of doubt: the Company, Purchaser shall have the right to extend the expiration date of the Offer (x) if on which shall initially be 20 Business Days from the Initial Expiration Date (as it may be extendedcommencement date of the Offer), all (i) for up to five additional Business Days, (ii) from time to time thereafter 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, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for until such period as the Purchaser may determineconditions are satisfied or waived, (yiii) for any period required by any rule, regulation, interpretation or position of the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under SEC or the Exchange Act and (z) the Purchaser may, in its sole discretion, extend staff thereof applicable to the Offer for or any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior or (iv) for up to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company10 additional Business Days, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaserif, or this Agreement is terminated immediately prior to the exchange scheduled or extended expiration date of Shares in the Offer, the Company Common Stock tendered and not withdrawn pursuant to the Offer constitute more than 80% and less than 90% of the outstanding Company Common Stock, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer. If any of the conditions to the Offer is not satisfied or waived on any scheduled or extended expiration date of the Offer, Purchaser shall, and Parent shall cause Purchaser 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 Purchaser shall promptly returnnot be required to extend the Offer beyond November 15, 2000. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Purchaser shall, and Parent shall cause any depository or exchange agentit to, including accept for payment and pay for, as promptly as practicable after the Exchange Agent, acting on behalf expiration of the PurchaserOffer, to return all shares of Company Common Stock validly tendered Shares and not withdrawn pursuant to the registered holders thereofOffer.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, 7.1 and (ii) none of the events no event set forth in Annex I (other than paragraphs (f) and (i)) A hereto shall have occurred and be continuing and (iii) the Company unless such event shall have complied with its applicable obligations under Section 1.2been waived by Parent or the Company, as applicable), as promptly as practicable after following the effectiveness effective date of the Form 10Registration Statement referred to in Section 1.1(d) below (the "EFFECTIVE DATE"), and in any event, within five (5) business days thereafter, the Purchaser Parent shall commence (within the meaning Offer for any and all of Rule 14d-2 under the Securities Shares at the various Exchange Act Ratios contemplated by Section 1.1(b) below. The obligation of 1934, as amended, and Parent to first issue shares of Parent Common Stock in exchange for Shares pursuant to the rules and regulations promulgated thereunder Offer (the “Exchange Act”)"FIRST CLOSING") the Offer, shall be subject only to (i) there being validly tendered in the valid acceptances of the Offer (and not, where permitted, withdrawn) by holders of at least ninety percent (90%) in the aggregate) and not withdrawn prior to the expiration nominal value of each of the issued B Preferred Shares, the issued A Ordinary Shares and the issued Ordinary Shares to which the Offer that number of Shares which, together relates (the "MINIMUM CONDITION") (and the expression "Offer" shall be construed in accordance with the Shares then beneficially owned by the Purchaser, represents at least a majority section 428 of the Shares outstanding on a fully diluted basis and no less than a majority of United Kingdom Companies Act 1985 (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively"COMPANIES ACT")), the “Minimum Condition”) and (ii) the satisfaction or waiver (in accordance with the terms of this Section 1.1 (a)) of the other conditions and requirements set forth in Annex I. Subject to A. Parent shall not make any changes in the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date conditions of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent approval of the Company. For It is agreed that the avoidance conditions set forth in Section 1 of doubt: (x) if on Annex A are for the Initial Expiration Date (as it sole benefit of Parent and may be extendedwaived by Parent (and only by Parent), all conditions to the Offer shall not have been satisfied in whole or waived, the Purchaser may, in part at any time and from time to time, in its sole discretion. It is agreed that the conditions set forth in Section 2 of Annex A are for the sole benefit of the Company and may be waived by the Company (and only by the Company), extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser mayin whole or in part at any time and from time to time, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under . To evidence the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date satisfaction of the Offer that would otherwise be permitted under clause (x) conditions set forth in Section 2 of this sentence ifAnnex A, the Company shall deliver to Parent on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date First Closing Date (as defined below) a certificate, executed by the same may be extended or required to be extended) without the written consent Chief Executive Officer of the Company, except indicating the Company's concurrence that the conditions set forth in Section 2 of Annex A shall have been satisfied. Parent shall not be permitted to issue Parent Common Stock in exchange for Shares pursuant to the Offer until after it has received the certificate described in the event that this Agreement is terminated pursuant preceding sentence from the Company. The failure by Parent or the Company, as the case may be, at any time to Section 8.1. If exercise any of the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange foregoing rights shall not be deemed a waiver of Shares in the Offer, the Purchaser shall promptly returnany such right, and each such right shall cause be deemed an ongoing right that may be asserted at any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, time and from time to return all tendered Shares to the registered holders thereoftime.
Appears in 1 contract
The Offer. (a) Provided that (i) Subject to this Agreement shall not have having been terminated in accordance with the provisions of Section 8.17.1 hereof, Lockheed Xxxxxx, acting through a wholly- owned single member Delaware limited liability company (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i"OFFER SUBSIDIARY")) , shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after practicable, but in no event later than five business days from the effectiveness date of the Form 10public announcement of the terms of this Agreement, and in any event, within five (5) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the all rules and regulations promulgated thereunder (the “Exchange Act”"EXCHANGE ACT")) an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, the "OFFER") up to the number of shares (collectively, the "SHARES") of COMSAT's common stock, without par value (the "COMSAT COMMON STOCK"), that is equal to the remainder of (i) 49% of the number of shares of COMSAT Common Stock outstanding at the close of business on the date of purchase pursuant to the Offer minus (ii) the number of shares of ----- COMSAT Common Stock then owned of record by "authorized carriers" (as defined in the Communications Satellite Act of 1962, as amended, 47 U.S.C. (S)701 et. seq., and all rules and regulations promulgated thereunder (the "SATELLITE ACT")) ("AUTHORIZED CARRIERS"), as evidenced by issuance of shares of Series II COMSAT Common Stock, minus (iii) the number of shares of COMSAT Common Stock with ----- respect to which written demand shall have been made and not withdrawn under Section 29-373 of the District of Columbia Business Corporation Act (the "DCBCA"), at a price of not less than $45.50 per Share, net to the seller in cash (the "OFFER PRICE"). Lockheed Xxxxxx shall extend the Offer, subject to for periods of no more than 60 days, until the earlier of (i) there being validly the one year anniversary of the date hereof or (ii) 10 business days after the date on which the last of the Authorized Carrier Conditions (as defined in Exhibit A hereto) shall have been --------- obtained. The obligation of Lockheed Xxxxxx to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (any of which may be waived in whole or in part by Lockheed --------- Xxxxxx in its sole discretion), and to the terms and conditions of this Agreement. Lockheed Xxxxxx expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of COMSAT, Lockheed Xxxxxx shall not (i) reduce the number of Shares subject to the Offer, (ii) waive the Minimum Condition (as defined in Exhibit A hereto), (iii) --------- reduce the Offer Price, (iv) modify or add to the conditions set forth in Exhibit A, (v) except as provided in this Section 1.1(a), extend the term of the --------- Offer, (vi) change the form of the consideration payable in the Offer or (in vii) make any other modifications that are otherwise materially adverse to holders of COMSAT Common Stock. Notwithstanding the aggregateforegoing, Lockheed Xxxxxx may, without the consent of COMSAT, (A) extend the term of the Offer beyond any scheduled expiration date of the Offer (but not beyond the two year anniversary of the date hereof) if, at any such scheduled expiration date, any of the conditions to Lockheed Xxxxxx'x obligation to accept for payment, and pay for, Shares tendered pursuant to the Offer shall not have been satisfied or waived and (B) extend the Offer (but not beyond the two year anniversary of the date hereof) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any other applicable Law (as hereinafter defined). Upon the terms and subject to the conditions of the Offer, Lockheed Xxxxxx shall accept for payment and will pay for, as soon as permitted under the terms of the Offer, Shares validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents Offer. The date and time at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of which the Offer shall be the date that close is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser referred to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof"OFFER CLOSING TIME".
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as As promptly as practicable (but in no event later than five business days after the effectiveness public announcement of the Form 10execution hereof), and in any event, within five (5) business days thereafter, the Purchaser Sub 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 amended (the “"Exchange Act”")) an offer (the "Offer") to purchase for cash not less than 35,144,833 shares and up to all of the issued and outstanding common stock, par value $.01 per share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company at a price of $27.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), the exact number of Shares within such range to be determined by Parent in its sole discretion, it being hereby agreed that Parent may change the amount of Shares sought to be purchased in the Offer within such range at any time prior to consummation of the Offer, provided that Parent complies with the requirements of Rule 14e-1 of the Exchange Act. The Offer shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that Offer, at least 35,144,833 Shares or such other number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority as shall equal 50.1% of the Shares outstanding on a fully fully-diluted basis and no less than a majority as of the voting power expiration of the outstanding shares of capital stock of Offer (the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”") and (ii) the satisfaction or waiver of to the other conditions and requirements set forth in Annex I. Subject A hereto. Sub shall, on the terms and subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and conditions of the other conditions and requirements set forth in Annex IOffer, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, payment and exchange the Offer Consideration for, all pay for Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date later of the Offer shall be the date that is twenty (20) business days following the commencement satisfaction of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser conditions to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to and the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer Offer; PROVIDED, HOWEVER, that no such payment shall be made by means until after any calculation of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (proration as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.applicable
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1Article VIII and the conditions set forth in clauses (b)(i), (ii) none of the events set forth in Annex I ), (other than paragraphs iii), (fiv)(A) and (i)iv)(B) of Annex I hereto shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2been satisfied, as promptly as practicable after the effectiveness of the Form 10reasonably practicable, and in any eventevent within ten Business Days of the date of this Agreement, within five (5) business days thereafterMerger Sub shall, the Purchaser and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer. The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration satisfaction of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote Minimum Condition (as defined in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Annex I hereto) and (ii) the satisfaction satisfaction, or waiver by Merger Sub or Parent, of each of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of I hereto (together with the Minimum Condition and the other conditions and requirements set forth in Annex ICondition, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to ExchangeConditions”) that contains ), and the terms set forth and conditions hereof. Parent and Merger Sub expressly reserve the right, in this Agreementtheir sole discretion, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease to (A) increase the Offer Consideration, (B) waive any Offer Condition (other than the Minimum Condition), or (C) modify any of the other terms or conditions of the Offer, except that, without the prior written consent of the Company, Parent and Merger Sub shall not (1) reduce the amount of the Cash Consideration or the amount of the Milestone Payment (provided, for the avoidance of doubt, that any increase in required withholding Tax due to changes in applicable Law shall not be considered a reduction to the Offer Consideration), (2) impose conditions to the Milestone Payment in addition to the conditions set forth in the form of CVR Agreement (or modify any of the conditions to the Milestone Payment set forth in the CVR Agreement in a manner adverse to holders of CVRs in their capacity as such), (3) change the form of consideration payable in the Offer or (other than by adding consideration), (4) reduce the maximum number of Shares subject to be purchased in the Offer without Offer, (5) waive, amend or change the prior written consent of the Company. For the avoidance of doubt: Minimum Condition, (x6) if on the Initial Expiration Date (as it may be extended), all impose conditions to the Offer shall not have been satisfied or waivedin addition to the Offer Conditions, the Purchaser may, from time to time, in its sole discretion, (7) extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be except as required or permitted under clause by Section 1.1(b) or (x) of 8) modify any Offer Condition set forth in this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on Agreement in a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer manner adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange holders of Shares (in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereoftheir capacity as such).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Miromatrix Medical Inc.)
The Offer. (a) Provided that (i) this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would result in accordance with Section 8.1, (ii) none a failure to satisfy any of the events conditions set forth in Annex I hereto (other than paragraphs (f) and the conditions described in Paragraphs (i), (ii) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2of Annex I), as promptly as practicable after the effectiveness of the Form 10date hereof, and but in any event, within five no event later than seven (57) business days thereafterfollowing the public announcement of the terms of this Agreement, the Merger Sub shall, and Purchaser shall cause Merger Sub to, commence (within the meaning Offer at a price of Rule 14d-2 under $18.25 per share of Company Common Stock, net to the Securities Exchange Act stockholders of 1934, as amended, and the rules and regulations promulgated thereunder Company in cash (the “Exchange Act”"Offer Price")) the Offer, . The Offer shall be subject only to (i) the condition that there being shall be validly tendered in accordance with the Offer (in terms of the aggregate) and not withdrawn Offer, prior to the expiration date of the Offer that and not withdrawn, a number of Shares whichshares of Company Common Stock that, together with the Shares shares of Company Common Stock then beneficially owned by the PurchaserPurchaser and/or Merger Sub, represents at least a majority of the Shares shares of Company Common Stock outstanding on a fully fully-diluted basis and no less than a majority of (the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “"Minimum Condition”) "), and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of I hereto (collectively with the Minimum Condition and the other conditions and requirements set forth in Annex ICondition, the Purchaser shall consummate "Offer Conditions"). Merger Sub expressly reserves the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant right to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date waive any of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, Conditions and to exchange make any change in the terms or Offer Consideration forConditions, any Shares validly tendered on provided that, no change or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall waiver may be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreementthat, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For , waives or changes the avoidance of doubt: Offer Conditions described in Paragraphs (x) if on the Initial Expiration Date (as it may be extendedi), all (ii), (iv)(a) or (h) of Annex I hereto, changes the form of consideration to be paid in the Offer, decreases the Offer Price or the number of shares of Company Common Stock sought in the Offer, imposes conditions to the Offer shall not have been satisfied in addition to those set forth in Annex I hereto or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would is otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer materially adverse to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent stockholders of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1Article VIII and the conditions set forth in clauses (c)(i), (ii) none of the events set forth in Annex I ), (other than paragraphs (fiii) and (iiv)(1), (iv)(2), (iv)(3) and (iv)(4) of Exhibit A hereto shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2been satisfied, as promptly as practicable after the effectiveness of the Form 10reasonably practicable, and in any eventevent by November 13, within five 2018 (5) business days thereafteror such other date as agreed to in writing by Parent and the Company), the Purchaser Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 14d‑2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer. The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration satisfaction of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote Minimum Condition (as defined in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”Exhibit A hereto) and (ii) the satisfaction or waiver by Merger Sub of each of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of Exhibit A hereto (together with the Minimum Condition and the other conditions and requirements set forth in Annex ICondition, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to ExchangeConditions”) that contains and the terms set forth and conditions hereof. Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition other than the Minimum Condition, or (C) modify any of the other terms or conditions of the Offer, except that, unless otherwise provided by this Agreement, without the Minimum Condition and written consent of the other conditions and requirements set forth in Annex I. The Purchaser Company, Merger Sub shall not decrease (1) reduce the Offer ConsiderationPrice, (2) change the form of consideration payable in the Offer or (other than by adding consideration), (3) add to the Offer Conditions, (4) reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions subject to the Offer shall not have been satisfied or waivedoffer, the Purchaser may, from time to time, in its sole discretion, (5) extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer except as required or permitted by Section 1.1(b), or (6) modify any Offer Condition (other than the Minimum Condition) or any term of the Offer (other than the terms that would otherwise may not be permitted under clause modified pursuant to subsection (xC) of this sentence ifSection 1.1(a)) set forth in this Agreement in a manner adverse to the holders of Shares. In addition, the parties hereby agree that the Minimum Condition may not be amended or waived by either Parent or Merger Sub, on such expiration datethe one hand, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in on the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofother hand.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) its terms and none of the events set forth in Annex I Paragraphs (other than paragraphs a) through (f) and (i)) of Annex I hereto shall have occurred and or be continuing and existing, no later than two (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness of the Form 10, and in any event, within five (52) business days thereafterafter the public announcement of the terms of this Agreement, the 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”)) the Offer, subject in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as soon as practicable after the public announcement of the terms of this Agreement, but in no event later than two business days after such public announcement. The Offer shall expire and terminate on the twentieth (i20th) there being validly tendered in business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in the aggregate) and not withdrawn prior order to the expiration satisfy any of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (2) two business days after the public announcement of the terms of this Agreement, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the prior satisfaction or waiver holders of Common Shares with respect to the Offer, which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction of the Minimum Condition and condition set forth in Annex I hereto. Without the other prior written consent of the COMPANY, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions and requirements set forth in Annex I, waive the Purchaser shall consummate Minimum Condition (as defined in Annex I), impose additional conditions to the Offer or amend any other term of the Offer in accordance with its any manner adverse to the holders of Common Shares; provided that the Purchaser expressly reserves the right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the COMPANY. Subject to the terms of the Offer and this Agreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Purchaser will accept for exchange, payment and exchange the Offer Consideration for, pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser is legally permitted shall make reasonable provision for the payment of Offer proceeds to do so under applicable law; provided, however, that the initial expiration date be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the Offer shall be the date that is twenty (20) business days following the commencement COMPANY's outstanding Common Shares. Subject to Section 8.01, if any of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made I hereto are not satisfied or, to the extent permitted by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, waived by the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent as of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extendedor any subsequently scheduled expiration date), all conditions to Purchaser will extend the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Dateeach case, for such the shortest time period as that it reasonably believes is necessary for the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date consummation of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) Offer. Each of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer parties hereto shall use its reasonable best efforts to the extent required by applicable law cause all conditions precedent set forth in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required Annex I to be extended) without fulfilled and avoid the written consent occurrence of the Company, except any event or to cure any event which may prevent such conditions precedent set forth in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofAnnex I from being fulfilled.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Princess Beverly Coal Holding Co Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) 7.1 hereof and none of the events set forth in Annex I (other than paragraphs (f) and (i)) hereto shall have occurred and or be continuing and existing, Sub (iii) or another direct or indirect wholly-owned Subsidiary of Parent in Parent's sole discretion (so long as such change of entity shall not adversely affect the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness intended tax-free nature of the Form 10transaction), and in any event, within five (5which case all references to "Sub" in this Agreement shall be to such other Subsidiary) business days thereafter, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “"Exchange Act”")) the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), 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 Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more later than ten (10) business days beyond Business Days after the latest expiration date of hereof the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may to exchange for each Share: (i) increase the Offer Consideration and extend the Offer a fraction of a share of Parent Common Stock equal to the extent required by applicable law in connection with such increase Exchange Ratio and (ii) extend the Offer cash in an amount equal to (A) Ten Dollars and Fifty Cents ($10.50) minus (B) an amount equal to the extent product of (x) the Exchange Ratio multiplied by (y) the Parent Market Price, without interest (the "Per Share Cash Consideration") as promptly as practicable following the date hereof (together, the "Exchange Offer Consideration"). For purposes of this Agreement, the "Exchange Ratio" shall be equal to the result obtained by dividing Five Dollars and Twenty-Five Cents ($5.25) by the Parent Market Price; provided if the number of shares of Parent Common Stock otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (issuable as the same may be extended or required to be extended) without the written consent part of the CompanyExchange Offer Consideration (assuming valid tender and no withdrawal of Thirty-Nine Million Five Hundred Thousand (39,500,000) Shares) would otherwise exceed Fifteen Million (15,000,000) (the "Maximum Number"), except in then the Exchange Ratio shall be reduced to a number equal to the quotient of (i) the Maximum Number divided by (ii) Thirty-Nine Million Five Hundred Thousand (39,500,000), rounded to four decimal points. In the event that this Agreement is terminated pursuant Parent declares a stock split, stock dividend or other reclassification or exchange with respect to Section 8.1. If Parent Common Stock with a record or ex-dividend date occurring during the Offer is terminated Valuation Period or withdrawn by for the Purchaserperiod between the termination of the Valuation Period and the Effective Time, or this Agreement is terminated prior there will be an appropriate adjustment made to the exchange closing sales prices during the Valuation Period and the Maximum Number for purposes of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including calculating the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.Ratio. The "
Appears in 1 contract
The Offer. (a) Provided Subject to the provisions of this Agreement and provided that none of the conditions identified in subparagraphs (a) - (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) hereto shall ------- have occurred and be continuing and (iii) continuing, Parent shall cause the Company shall have complied with its applicable obligations under Section 1.2Purchaser to, as promptly as reasonably practicable after the effectiveness of the Form 10date hereof, and but in any event, within no event later than five (5) business days thereafterfollowing the initial public announcement of the Purchaser's intention to commence the Offer, the Purchaser 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 promulgated thereunder amended (the “"Exchange Act”")) the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power for all of the outstanding shares Shares at a price of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively------------- $10.68 per Share, the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject net to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth seller in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”)cash. The obligation of the Purchaser to accept for exchange, payment and to exchange the Offer Consideration for, pay for any Shares tendered shall be subject only (i) to such number of Shares, when added to the number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned subsidiary of Parent, as shall constitute two-thirds of the Company's Fully Diluted Shares (as defined in Section 4.2) being validly tendered on or prior to the expiration or termination of the Offer and not withdrawn shall be subject (the "Minimum Share Condition") and ----------------------- (ii) to the Minimum Condition and the other conditions and requirements set forth in Annex I. The to the Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease ------- may at anytime transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer Consideration(the "Tendered Shares"), change but no such --------------- assignment shall relieve the form Purchaser of consideration payable in its obligations hereunder. The Purchaser expressly reserves the right to waive any of the conditions to the Offer or reduce set forth in Annex I and to modify the maximum number terms and conditions of Shares to be purchased in the Offer Offer; ------- provided, however, that, without the prior written consent of the Company, the -------- ------- Purchaser shall not amend or modify the terms of the Offer to (i) reduce the cash price to be paid pursuant to the Offer, (ii) reduce the number of Shares as to which the Offer is made, (iii) change the form of consideration to be paid in the Offer, (iv) modify or waive the Minimum Share Condition, or (v) impose conditions to its obligation to accept for payment or pay for the Tendered Shares other than those set forth in Annex I. Subject to the terms and ------- conditions thereof, the Offer shall expire at midnight, New York City time, on the date that shall be 20 business days after the date the Offer on which shall be commenced. For The Offer may not be extended without the avoidance of doubt: Company's prior written consent; provided, however, that the Purchaser may (x) from time to time extend -------- ------- (and re-extend) the Offer, if on at the Initial Expiration Date (as it may be extended), all scheduled expiration date of the Offer any of the conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from until such time to time, in its sole discretion, extend the Initial Expiration Date, for as such period as the Purchaser may determine, conditions shall be satisfied or waived; (y) extend the Purchaser mayOffer for any period required by any rule, in its sole discretionregulation, provide a “subsequent offering period” in accordance with Rule 14d-11 under interpretation or position of the Securities and Exchange Act and Commission (the "SEC") or the staff thereof --- applicable to the Offer; or (z) the Purchaser may, in its sole discretion, extend (and re-extend) the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) 20 business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, or (y) above if on such expiration date, date there shall not have not been tendered (and not withdrawn) at least ninety percent (90%) that number of Shares necessary to permit the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required Merger to be extended) effected without the written consent a meeting of the Company, except 's stockholders in accordance with the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereofMBCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (CSW Acquisition Corp)
The Offer. (a) Provided that (i) this Agreement shall not ------------- --------- have been terminated in accordance with Section 8.1Article IX, unless otherwise agreed by Parent and the Company, no later than three Business Days following effectiveness of a Registration Statement on Form S-4 (iitogether with any amendments or supplements thereto, the "Offer Registration Statement") none Parent ---------------------------- shall cause Merger Sub to commence an offer (the "Offer") to purchase all of the events ---------- outstanding shares of Company Common Stock at a price for each share of Company Common Stock of (1) $29.60, net to the seller in cash, and (2) a fraction of a share of Parent Common Stock equal to the Exchange Ratio. The Offer shall be subject only to (1) 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 of Company Common Stock 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 I (other than paragraphs (f) and (i)) hereto. Merger Sub shall have occurred the right to waive any of the conditions to the Offer and be continuing and to make any change in the terms of or conditions to the Offer; provided that (iiiA) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as practicable after the effectiveness Minimum Condition may not be -------- waived or reduced to less than two-thirds of the Form 10, and in any event, within five (5) business days thereafter, the Purchaser shall commence (within the meaning shares of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer, subject to (i) there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares Company Common Stock outstanding on a fully fully-diluted basis and no less than a majority of without the voting power of the outstanding shares of capital stock prior written consent of the Company entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement (collectively, the “Minimum Condition”) and (iiB) the satisfaction or waiver of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for exchange, and exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall no change may be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change changes the form of consideration payable in the Offer or reduce Offer, decreases the consideration payable in the Offer, reduces the maximum number of Shares 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 prior written consent of the Company. For , Merger Sub shall have the avoidance right to extend the Offer (i) for one or more periods (not in excess of doubt: (x10 Business Days each) if on but in no event ending later than the Initial Expiration Termination Date (as it may be extended)if, all at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date, for until such period as the Purchaser may determineconditions are satisfied or waived, (yii) for any period required by any rule, regulation, interpretation or position of the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under SEC or the Exchange Act and (z) the Purchaser may, in its sole discretion, extend staff thereof applicable to the Offer for or any reason on one period required by applicable law or more occasions (iii) for an aggregate period of not more than ten (10) business days 10 Business Days beyond the latest expiration applicable date of the Offer that would otherwise be permitted under clause (xi) or (ii) of this sentence sentence, if, on as of such expiration date, there all of the conditions to the Offer have not been satisfied or waived, but the number of shares of Company Common Stock validly tendered (and not withdrawn) at least ninety percent (withdrawn pursuant to the Offer equals 80% or more, but less than 90%) , of the outstanding Shares shares of Company Common Stock on a fully diluted basis. The Purchaser may (i) increase In the event that Merger Sub is unable to consummate the Offer Consideration and extend on the initial scheduled expiration date due to the failure of the conditions to the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable lawbe satisfied or waived, in each case in its sole discretion and without the Company’s consent. The Purchaser Parent shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Companycause Merger Sub to, except in the event that unless this Agreement is terminated pursuant to Section 8.1. If Article IX, extend the Offer is terminated or withdrawn by and set a subsequent scheduled expiration date, and shall continue to so extend the Purchaser, or this Agreement is terminated prior Offer and set subsequent scheduled expiration dates until the Termination Date. Subject to the exchange foregoing and upon the terms and subject to the conditions of Shares in the Offer, the Purchaser shall promptly return, and Parent shall cause any depository or exchange agentMerger Sub to, including accept for payment and pay for, as promptly as practicable after the Exchange Agent, acting on behalf expiration of the PurchaserOffer, to return all shares of Company Common Stock validly tendered Shares and not withdrawn pursuant to the registered holders thereofOffer. Parent will announce the exact Exchange Ratio 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 second Trading Day immediately preceding the Acceptance Date. Parent will make such announcement by issuing a press release to the Dow Xxxxx News Service.
Appears in 1 contract
