Common use of Special Tender Offer Clause in Contracts

Special Tender Offer. (a) As promptly as practicable following the Closing, the Investor may commence (within the meaning of Rule 14d-2 under the Exchange Act) the Tender Offer, to the shareholders of the Company, for the purchase of a number of Ordinary Shares up the Maximum Tender Offer Shares, at a price per Ordinary Share equal to at least the Tender Offer PPS and subject to the terms and conditions set forth therein; provided, that Investor shall not be required to (but may) commence and/or continue the Tender Offer in the event of an Adverse Recommendation Change. (b) The Company shall cooperate (and shall cause their respective counsel, auditors, agents and representatives to cooperate) in the preparation of any documents, rulings, applications, exemptions, or other instruments related to or required in order to initiate and consummate the Tender Offer, as may be reasonably requested by the Investor. (c) The Tender Offer may be subject to such conditions determined by the Investor, to the extent permitted by the ISA, the Companies Law, the Tender Offer Regulations and the rules and regulations promulgated by the SEC, including the Minimum Tender Offer Shares and shall be also subject to the Maximum Tender Offer Shares, but shall not be subject to any financing condition. (d) On the date of the commencement of the Tender Offer, Investor shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Tender Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, an Offer to Purchase and all other documents forming part of the Tender Offer and a form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Tender Offer will be made, together with any amendments and supplements thereto, the “Offer Documents”). To the extent required by the Exchange Act, the Investor shall: (A) deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices; (B) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule TO, to NASDAQ in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and (C) cause the Offer Documents to be disseminated to all holders of Company shares as and to the extent required by the Exchange Act. The Company shall promptly furnish to Investor all information concerning the Company that is required by the Exchange Act, the SEC or its staff, NASDAQ, the ISA, TASE or other Governmental Requirement, to be set forth in the Offer Documents and is not publicly available. Investor, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by Governmental Requirement. The Investor shall promptly notify the Company upon the receipt of any comments from the SEC, any request from the SEC for amendments or supplements, to the Offer Documents or any other material communication whether written or oral from the SEC (in each case, related to the Tender Offer), and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Investor shall use commercially reasonable efforts to respond promptly to any comments of the SEC with respect to the Offer Documents. The Investor shall cause the Offer Documents to comply as to form in all material respects with requirements of any applicable Governmental Requirements. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding in writing to any material communication of the SEC with respect to the Offer Documents, the Investor shall provide the Company and its representatives a reasonable opportunity to review and comment on such Offer Documents or response, and Investor shall give reasonable consideration to any such comments. (e) Except to the extent the Board has changed the Board Recommendation to a “neutral” position in accordance with Section 5.3(c) or 5.3(d), as soon as reasonably practicable following (and, to the extent the Investor notifies the Company at least two (2) Business Days prior to the commencement of the Tender Offer, on the date of) the filing of the Offer Documents with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer (together with all amendments, supplements and exhibits thereto, the “Schedule 14D-9”) that shall contain (i) the Board Recommendation, (ii) a fairness opinion in customary form received in connection with the Tender Offer, and (iii) such other information that is customarily included therein, as shall reasonably be determined by the Company. Investor shall promptly furnish to the Company all information concerning Investor that is reasonably requested by the Company, or is required by the Exchange Act or other Governmental Requirement, to be set forth in the Schedule 14D-9. The Company, on the one hand, and Investor, on the other hand, agree to promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by Governmental Requirement. The Company further agrees to cause the Schedule 14D-9, as so corrected (if applicable), to be filed with the SEC and disseminated to the stockholders of the Company, in each case as and to the extent required by the Exchange Act. The Company shall cause the Schedule 14D-9 to comply as to form in all material respects with the requirements of all applicable Governmental Requirements. The Company shall promptly notify Investor upon the receipt of any comments from the SEC, any request from the SEC for amendments or supplements, to the Schedule 14D-9, or any other material communication whether written or oral from the SEC (in each case, related to the Tender Offer) and shall promptly provide Investor with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand and prior to the filing of the Schedule 14D-9 (including any amendments or supplements thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding in writing to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Investor and its representatives a reasonable opportunity to review and comment on such Schedule 14D-9 (or amendments or supplements thereto) or response, and the Company shall give reasonable consideration to any such comments. The Company shall use its commercially reasonable efforts to respond promptly to any comments of the SEC with respect to the Schedule 14D-9. The Company hereby consents to the inclusion in the Offer Documents of the Board Recommendation. (f) In connection with the Tender Offer, the Company shall furnish the Investor with such information as the Investor may reasonably request in order to disseminate and otherwise communicate the Tender Offer to the record and beneficial holders of Company shares, including a list, as of the most recent practicable date, of the shareholders of the Company (including a beneficial owner look through analysis pursuant to tender offer rules), mailing labels and any available listing or computer files containing the names and addresses of all record and beneficial holders of Company shares, and lists of security positions of Company shares held in stock depositories. Subject to applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Tender Offer such information, including any information contained in any such lists of stockholders, mailing labels and listings or files of securities positions, shall be subject to the Confidentiality Agreement. (g) No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that Investor or any of its Affiliates is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that Investor or any of its Affiliates could be deemed to trigger the provisions of any such plan or arrangement, by virtue of the Acquired Shares or any Ordinary Shares acquired in the Tender Offer.