The Offer and the Merger Section 1.01. The Offer 2 Section 1.02. Company Actions 5 Section 1.03. Board of Directors Prior to the Effective Time 6 Section 1.04. Top-Up Option 7 Section 1.05. The Merger 8 Section 1.06. Closing 8 Section 1.07. Effective Time 8 Section 1.08. Effects of the Merger 9 ARTICLE 2
The Mergers Upon the terms and subject to the conditions set forth in this Agreement:
Method of Offer and Sale The Shares may be offered and sold (A) in privately negotiated transactions with the consent of the Company; (B) as block transactions; or (C) by any other method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the Principal Market or sales made into any other existing trading market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree to the method of offer and sale specified in the preceding sentence, and (except as specified in clauses (A) and (B) above) the method of placement of any Shares by the Agent shall be at the Agent’s discretion.
The Offer (a) Provided that none of the conditions set forth on Exhibit A hereto shall have occurred and be continuing, as promptly as practicable but in no event later than five business days after the date of the public announcement (on the date hereof or the following day) by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion). Sub expressly reserves the right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) add to or modify the Offer Conditions, (iv) except as provided in the next two sentences, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend or alter any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer 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, (C) extend the Offer for up to ten business days if the Minimum Tender Condition (as defined in Exhibit A) has not been satisfied as of the scheduled expiration date of the Offer and (D) extend the Offer for any reason for up to two business days. Without limiting the right of Sub to extend the Offer pursuant to the immediately preceding sentence, in the event that (i) the Minimum Tender Condition has not been satisfied or (ii) any condition set forth in paragraph (a) of Exhibit A is not satisfied at the scheduled expiration date of the Offer, Sub shall, and Parent shall cause Sub to, extend the expiration date of the Offer in increments of five business days each until the earliest to occur of (x) the satisfaction or waiver of the Minimum Tender Condition or such other condition, or Parent reasonably determines that any Offer Condition is not capable of being satisfied on or prior to December 29, 1998, (y) the termination 9 4 of this Agreement in accordance with its terms and (z) December 29, 1998; provided, however, that if any person or group (within the meaning of Section 13(d)(3) of the Exchange Act) has publicly made a Takeover Proposal (as defined in Section 6.02(a)) or disclosed in writing its intention to make a Takeover Proposal, Sub shall not be required pursuant to this sentence to extend the Offer for more than 20 business days beyond the date on which such Takeover Proposal was publicly announced or such intention was disclosed if at the end of such 20 business day period the Company has given Parent a Notice of Superior Proposal with respect to the Takeover Proposal. Subject only to the conditions set forth in Exhibit A, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. supplemented to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Offer and Sale Procedures Each of the Initial Purchasers and the Company hereby establish and agree to observe the following procedures in connection with the offer and sale of the Securities:
Consummation of the Merger As soon as practicable after the Closing, the parties hereto shall cause the Merger to be consummated by filing with the Secretary of State of the State of Delaware a certificate of merger or other appropriate documents (in any such case, the “Certificate of Merger”) in such form as required by, and executed in accordance with, the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with such Secretary of State, or at such later time as Parent and the Company shall agree and specify in the Certificate of Merger (the time and date the Merger becomes effective being the “Effective Time” and “Effective Date,” respectively).
Purchase and Sale of the Units Subject to the terms and conditions of this Agreement, on the Closing Date, each Investor shall purchase, and the Company shall sell and issue to each Investor, the number of Units set forth opposite the Investor’s name on the signature page attached hereto at a price per Unit equal to the Per Unit Purchase Price.
Purchase and Sale Closing 19 Section 2.1 Purchase and Sale of Acquired Assets 19 Section 2.2 Excluded Assets 20 Section 2.3 Assumption of Assumed Liabilities 22 Section 2.4 Excluded Liabilities 23 Section 2.5 Purchase Price 25 Section 2.6 Certain Adjustments to Base Purchase Price 25 Section 2.7 Proration 28 Section 2.8 Allocation of Purchase Price 30 Section 2.9 Closing 30 Section 2.10 Deliveries by Seller at Closing 30 Section 2.11 Deliveries by Buyer at Closing 32 Section 2.12 Guaranties 34 ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 34 Section 3.1 Organization and Existence 34 Section 3.2 Authority and Enforceability 34 Section 3.3 No Conflicts; Consents and Approvals 34 Section 3.4 Legal Proceedings 35 Section 3.5 Compliance with Laws; Permits 35 Section 3.6 Title to Acquired Assets 36 Section 3.7 Assets Used in Operation of the Facilities 36 Section 3.8 Material Contracts 37 Section 3.9 Insurance 39 Section 3.10 Taxes 39 Section 3.11 Environmental Matters 39 Section 3.12 Employment and Labor Matters 40 Section 3.13 Employee Benefit Plans 42 Section 3.14 Condemnation 42 Section 3.15 Financial Information 42 Section 3.16 Absence of Certain Changes 43 Section 3.17 Real Property 43 Section 3.18 Regulatory Status 44 Section 3.19 Brokers 44 Section 3.20 Complete Copies 44 Section 3.21 Capacity Markets; Winter Reliability Program 44 Section 3.22 Exclusive Representations and Warranties 45
Purchase and Sale of Units The Purchaser hereby subscribes for and purchases from the Company, and the Company hereby issues and sells to the Purchaser, 20,000 units (the “Initial Units”) at a purchase price of approximately $.004348 per Initial Unit for an aggregate purchase price of $86.84. Each Initial Unit consists of one share of Common Stock and one warrant (an “Initial Warrant”) to purchase one additional share of Common Stock for $7.00 in accordance with the terms of the Warrant Agreement to be entered into by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent, which shall be substantially in the form attached hereto as Exhibit A (the “Warrant Agreement”). The Initial Units, together with the underlying Common Stock and the Initial Warrants, are referred to herein as the “Securities.”
The Merger Closing Upon the terms and subject to the conditions of this Agreement, the closing (the "Closing") of the Merger shall take place at 10:00 A.M., on the third business day after the fulfillment of the conditions specified in Sections 6.02 and 7.02 hereof, at the offices of Squadron, Ellenoff, Plesent & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time, date and place as may be agreed upon in writing by Parent and MGI. The date on which the Closing shall take place is referred to as the "Closing Date" and the time on the Closing Date when the Closing shall take place is referred to as the "Closing Time," MGI, Parent and Acquisition shall use their respective best efforts to cause the Merger to be consummated at the earliest practicable time after consummation of the Offer.
