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) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer. (b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Bertuccis Inc), Merger Agreement (Ne Restaurant Co Inc), Merger Agreement (Bertuccis of White Marsh Inc)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 10 and (ii) none of the events set forth in Annex I hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Parent shall or shall cause Merger Sub toshall, as promptly as practicable following (and in any event not later than eight (8) Business Days after the date hereof, but in no event later than five business days after the initial public announcement of the Offerthis Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase Offer for 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 Sharethe Offer Price, 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 "Offerorwithout interest."
(b) The obligation of Offeror Parent and Merger Sub to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) 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 (including the Shares tendered under the Shareholder Agreements) which, together with any the Shares then owned by Parent or and Merger Sub, represents at least ninety percent (90%) percent of the total number of Fully Diluted Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(dbelow) of this Agreement) in an amount sufficient (the “Minimum Condition”), subject to consummate such waivers of, and changes to, the transactions contemplated hereby Minimum Condition as may be required pursuant to the terms of the Commitments (as defined in said Section 4.2(d1.1(e)) or 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 (iiiii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition hereto (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Conditioncollectively, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d“Offer Conditions”)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) For purposes of this Agreement. Subject to , “Fully Diluted Shares” shall mean the terms and conditions total number of the Offer and outstanding shares of Company Common Stock, assuming (A) exercise on a cash basis of all outstanding Company Options, whether vested or unvested (excluding for this Agreementpurpose all Company Options, Offeror shall accept for payment whether vested or unvested, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file held by holders who have entered into binding written agreements with the SEC a Tender Offer Statement on Schedule 14D-1 with respect Company agreeing to the Offer which will contain the offer to purchase and form refrain from exercising all or any portion of the related letter of transmittal and summary advertisement (together with such Company Options during any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event period that the Offer remains pending and all Company Options with an exercise price greater than the Offer Price, irrespective of whether the holders thereof have entered into such binding written agreements), and (B) exercise or conversion of all other rights to acquire Company Common Stock or securities convertible into Company Common Stock and issuance of all shares of Company Common Stock that the Company is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares obligated to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)issue.
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
The Offer. (aA) Provided that nothing shall have occurred that would result in a failure An "Offer" for the purposes of this Schedule is an offer to satisfy surrender this Lease to the Landlord free from encumbrances (other than any of the conditions set forth in paragraphs (asubject to which this Lease was granted) through and which:
(i) is unconditional;
(ii) is made irrevocably by the Tenant unless and until rejected or treated as rejected by the Landlord pursuant to paragraph 6.3(C) of Annex this Part I heretoof this Schedule;
(iii) is made in the form set out in Part II of this Schedule;
(iv) is submitted by the Tenant to the Landlord in duplicate, Parent shall both parts of which are signed by the Tenant;
(v) specifies the Consideration; and
(vi) specifies whether any tenant's fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement deemed receipt) of the an Offer, commence the Landlord shall be entitled (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer"but not obliged) 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 give notice in writing 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 Tenant stating either:
(i) the condition that there shall be validly tendered in accordance with the terms of it does not wish to accept the Offer prior to in which event the expiration date provisions of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%paragraph 6.3(C) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), will apply; or
(ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient that it is minded to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend accept the Offer and to make any other changes in at the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the OfferConsideration, subject to compliance with Rule 14e-1(csection 38A(4) under of the Exchange Act. Subject Landlord and Tenant Act 1954 in which event subject to compliance by the Landlord and the Tenant with paragraph 6.4 the Landlord will accept the Offer in accordance with paragraph 6.5 within 5 (five) Business Days of compliance by the Tenant with the provisions of paragraph 6.4(B).
(C) In the event (1) the Landlord declines to accept the Offer pursuant to paragraph 6.3(B)(i) or (ii) at the expiry of the 25 Business Days' period specified in paragraph 6.3(B) the Landlord has not notified the Tenant that it is minded (subject to compliance with Section 38A(4) of the Landlord and Tenant Act 1954) to accept a surrender of this Lease and the Offer is thereby treated as rejected by the Landlord or (iii) the Landlord has not within 20 Business Days after notifying the Tenant pursuant to paragraph 6.3(B)(ii) that it is minded to accept the Offer then complied with the provisions of Section 38A(4) of the Landlord and Tenant Act 1954 and paragraph 6.4(A) and following compliance by the Tenant with paragraph 6.4(B) accepted the Offer pursuant to paragraph 6.5, the Tenant may assign or underlet this Lease to a third party for a consideration determined by the Tenant, provided that:
(i) the Tenant must comply with the provisions of paragraph 3.20 (other than paragraph 3.20(E)) of Schedule 3;
(ii) the Tenant shall keep the Landlord fully informed of its negotiations with third parties in respect of any proposed assignment or underletting, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may be redacted by the Tenant if the Tenant reasonably considers it to be necessary, save that the key terms including the consideration must be disclosed to the terms Landlord);
(iii) the third party transaction must be bona fide and conditions of on arm's length terms; and
(i) if the proposed assignment or underlease to a third party would be for less than the Consideration specified in the Offer, Parent the Tenant must first offer to surrender this Lease to the Landlord for the price which has been agreed with the proposed assignee or undertenant (the "Revised Offer") and Sub will each use its reasonable best efforts to takethe Landlord shall be entitled but not obliged within 10 Business Days of receipt (or deemed receipt), or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date time being of the commencement essence, of the Offer, Offeror shall file Revised Offer to decline the Revised Offer or to notify the Tenant that it is minded to accept the Revised Offer subject to compliance with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form Section 38A(4) of the related letter of transmittal Landlord and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereofTenant Act 1954. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares Landlord fails to be returned respond to the registered holders Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Landlord. The Revised Offer shall comply in all respects with the provisions of paragraph 6.3(A) subject to any necessary revisions to the form set out in Part II of this Schedule and the Consideration for the purposes of the Shares represented by Revised Offer shall be the certificate consideration for which the Tenant is intending to dispose of this Lease whether monetary or certificates surrendered not monetary and the terms of this paragraph (C) apply to the Exchange Agent (Revised Offer as defined if it were an Offer, save in Section 3.3 respect of this Agreement)the time in which the Landlord must notify the Tenant of whether it intends to accept.
Appears in 3 contracts
Sources: Lease (Indivior PLC), Lease Agreement (Indivior PLC), Lease (Indivior PLC)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 7.1 hereof and provided that would result in a failure to satisfy any none of the conditions set forth events in paragraphs clauses (a) through (ig) of paragraph 2 of Annex I hereto, Parent A shall or have occurred and shall cause Sub tonot have been waived by Purchaser, as promptly as practicable following after the date hereofhereof (and in any event within ten (10) Business Days), but in no event later than five business days after the initial public announcement of the Offer, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act) the Offer to purchase all Shares at a price per share equal to the Offer Price (as such Offer Price may be adjusted pursuant to Section 1.1(h)).
(b) The obligation of 1934Purchaser upon expiration of the Offer to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject to the satisfaction, as amended or waiver by Parent or Purchaser, of the conditions set forth in Annex A (the "Exchange Act"“Offer Conditions”). Subject to the satisfaction, or waiver by Parent or Purchaser, of the Offer Conditions (including the satisfaction of the Minimum Condition), Purchaser shall (and Parent shall cause Purchaser to) a tender offer (as amended from time to time consummate the Offer in accordance with this Agreementits terms and accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Date (the time of such acceptance for payment, and the payment for such Shares, the "Offer") “Acceptance Time”). The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant 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, Offer shall be paid net to the seller in cash. For purposes , without interest, subject to the withholding of any Taxes required by applicable Law, on the terms and subject to the conditions set forth in this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "OfferorAgreement."
(c) The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only made by means of an offer to (i) the condition purchase that there shall be validly tendered in accordance with describes the terms and conditions of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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") this Agreement. Parent and (iii) the other conditions set forth in Annex I hereto. Offeror Purchaser expressly reserves reserve the right (but shall not be obligated), at any time and from time to time in its their sole discretion discretion, to waive any such condition (including the Minimum Offer Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, Offer Price or to extend the Offer and to make modify or amend any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingwritten consent of the Company, Offeror will Purchaser shall not (i) decrease the price per Share Offer Price, (ii) change the form of consideration payable in the Offer, (iiiii) decrease reduce the maximum number of Shares to be purchased in the Offer, (iiiiv) amend or modify any of the Offer Conditions in a manner that is adverse in any material respect to the holders of Shares or impose conditions to the Offer that are different than or in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the CompanyConditions, (v) except amend or waive the Minimum Condition, or (vi) extend the Expiration Date in a manner other than pursuant to and in accordance with this Agreement. The failure by Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Unless extended as provided in the next sentencethis Agreement, extend the Offer, (vi) change the form of consideration payable in the Offer or shall expire at midnight (viiNew York City time) amend any other term on the date (the “Initial Expiration Date”) that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the commencement of the Offer in a manner adverse to (within the holders meaning of Rule 14d-2 under the SharesExchange Act). Notwithstanding the foregoing, Offeror if, on the Initial Expiration Date any of the Offer Conditions set forth in paragraphs 1(a), 2(a) or 2(b) of Annex A are not satisfied or, to the extent waivable in accordance with the terms hereof, has not been waived by Parent or Purchaser, then Purchaser shall extend the Offer for a period of five (5) Business Days to permit such Offer Conditions to be satisfied. Thereafter, if so requested by the Company by written notice delivered to Purchaser on or prior to the date the Offer is then scheduled to expire, Purchaser shall extend the Offer for one or more periods of not more than five (5) Business Days each, to permit the Offer Conditions set forth in paragraphs 1(a), 2(a) or 2(b) of Annex A to be satisfied, or to the extent waivable in accordance with the terms hereof, validly waived by Purchaser. Purchaser may, but shall not be obligated to, extend (and re-extend) the Offer and its expiration date (the Initial Expiration Date as it may be extended herein is referred to as the “Expiration Date”) for one or more periods, in consecutive increments of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion (or such longer period as the Parties hereto may agree), to permit any Offer Conditions to be satisfied. Purchaser shall, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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") SEC or the its staff thereof or any rule or regulation of Nasdaq, in each case, applicable to the Offer. The limitations regarding the terms and conditions of the Offer: provided, as set forth however, that notwithstanding anything contained in the second preceding and the immediately preceding sentencesthis Agreement, Purchaser shall not be applicable required to (i) extend the Offer (A) beyond the Outside Date or (B) at any time that Parent or Purchaser is permitted to terminate this Agreement pursuant to Article VII, or (ii) waive any Offer Conditions.
(e) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8.1(dArticle VII.
(f) If the Acceptance Time occurs, Purchaser may, in its sole discretion, commence a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act (a “Subsequent Offering Period”) of this Agreementup to twenty (20) Business Days. Subject to the terms and conditions of this Agreement and the Offer Offer, Purchaser shall (and this Agreement, Offeror Parent shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to cause Purchaser to) accept for payment, and pay for, pursuant to the Offer all Shares as soon promptly as practicable after expiration any such Shares are validly tendered during such Subsequent Offering Period. The Offer Price payable in respect of each Share validly tendered during such Subsequent Offering Period shall be paid net to the Offerseller in cash, without interest, subject to compliance with Rule 14e-1(cthe withholding of any Taxes required by applicable Law.
(g) under the Exchange Act. Subject On or prior to the terms and conditions commencement date of the Offer, Parent and Sub will each use its reasonable best efforts to take, Purchaser shall: (i) file or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file filed with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the offer to purchase and the Shares pursuant to the Offer, the form of the related letter of transmittal and transmittal, the summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and together with any all exhibits, amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”); and (ii) cause the Schedule TO and related Offer Documents to be disseminated to holders of Shares in accordance with applicable Law. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that may be required by applicable Law or reasonably requested in connection with any action contemplated by this Section 1.1(g). The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents will comply in all material respects prior to the filing thereof with applicable federal securities laws the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any other applicable lawscomments made by the Company and its counsel. Each of Parent, Offeror Purchaser and the Company each agree agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Offeror will Parent and Purchaser further agree to 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 as and to the extent required by applicable federal securities laws and Laws. Upon receipt of any other applicable laws. The Company and its written or oral comments by Parent, Purchaser or their counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by OfferorDocuments, Parent and Sub Purchaser agree to: (i) promptly provide the Company and its counsel with a copy of any such written comments (or a description of any such oral comments); (ii) provide the Company and its counsel a reasonable opportunity to comment on any proposed response thereto, and give reasonable and good faith consideration to any such comments made by the Company and its counsel; and (iii) promptly provide the Company with copies of any written comments or responses submitted by Parent and Purchaser in response thereto.
(h) The Offer Price shall cause all be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after the date hereof and prior to Purchaser’s acceptance for payment of, and payment for, Company Common Stock tendered Shares in the Offer, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(i) Purchaser shall be entitled to deduct and withhold from any consideration payable to any holder of any Company Stock Certificate (in his or her capacity as a holder of Company Common Stock) such amounts as are required to be returned deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax Law or under any other applicable Law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the registered holders of the Shares represented by the certificate or certificates surrendered Person to the Exchange Agent (as defined in Section 3.3 of this Agreement)whom such amounts would otherwise have been paid.
Appears in 3 contracts
Sources: Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Lacrosse Footwear Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Article VII hereof, as promptly as practicable following the date hereof, but in no event later than five the fifth business days after day following the initial public announcement date of the Offerthis Agreement, Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer the Offer at the Offer Price.
(as amended from time b) The obligations of Purchaser to time in accordance with this Agreement, consummate the "Offer") to purchase all of the issued Offer 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 of the Shares tendered in the Offer shall be subject only to the conditions set forth on Annex I hereto (i) the "Tender Offer Conditions"), including the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent equal to a majority of the Shares outstanding on a fully-fully diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all stock options and warrants which are vested or scheduled to vest on or before October 31, 1998 with an exercise price less than the Offer Price, and conversion of all convertible securities or other rights to purchase or acquire Shares with a conversion price less than the Offer Price) shall be validly tendered and not withdrawn prior to the Expiration Date or shall be held by Parent, Purchaser or any affiliate thereof or issuable upon the exercise or conversion of any equity or debt security held by Parent, Purchaser or any affiliate thereof which is then exercisable or convertible (the "Minimum Condition"), (ii) the receipt of cash proceeds . The amount of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant Offer Price shall be net to the seller in cash, upon the terms and subject to the conditions of the Commitments (as defined in said Section 4.2(d)) Offer and subject to reduction for any applicable federal back-up or such other terms as applicable withholding or stock transfer taxes. The Offer shall remain open until 12:00 Midnight, New York City time, on the twentieth business day following the commencement of the Offer. Parent and Purchaser agree that if all of 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 set forth in Annex I hereto. Offeror expressly reserves hereto are not satisfied by the right in its sole discretion to waive time of any such condition (including scheduled termination of the Minimum ConditionOffer then, provided that no all such waiver conditions are reasonably capable of the Minimum Condition being satisfied, Purchaser shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) waived; provided that Purchaser shall not be required to extend the Offer for any period required by any rulebeyond September 15, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer1998. The limitations regarding the terms and conditions of the Offer, as set forth As used in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment the "Expiration Date" means 12:00 Midnight, and pay forNew York City time, all Shares validly tendered and not withdrawn pursuant to on the Offer that Offeror becomes obligated to accept for paymenttwentieth business day following the commencement of this Offer, and pay for, pursuant to unless Purchaser extends the Offer as soon as practicable after expiration of the Offerpermitted or required by this Agreement, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer in which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, case the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws Expiration Date" means the latest time and any other applicable laws. Parent, Offeror and the Company each agree date to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that which the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)extended.
Appears in 3 contracts
Sources: Merger Agreement (Cybermedia Inc), Merger Agreement (Networks Associates Inc/), Merger Agreement (Networks Associates Inc/)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 9.01 and that none of the events or conditions set forth in Annex A shall have occurred that would result in a failure to satisfy any of and be existing and shall not have been waived by Parent (the conditions set forth in paragraphs (a) through (i) of Annex I heretoA, Parent the “Tender Offer Conditions”), Purchaser shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the "rules and regulations thereunder, the “Exchange Act"”)) a tender offer the Offer as promptly as practicable and in any event within ten (as amended from time to time in accordance with this Agreement, 10) business days after 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 cashdate hereof. 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 Purchaser to accept for payment Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for any Shares each such tendered in the Offer and not subsequently withdrawn Share shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Tender Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I heretoConditions. Offeror Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Per Share Amount payable in the Offer, to extend the Offer and to make any other changes in to the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the prior written consent of the Company in writing, Offeror will not (i) decrease the price per Minimum Condition (as defined in Annex A) may not be waived and (ii) no change may be made that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in the Offer, (iiC) decrease reduces the maximum number of Shares to be purchased in the Offer, (iiiD) impose imposes conditions to the Offer in addition to those set forth in Annex I A hereto, or (ivE) change amends the conditions to the Offer set forth in Annex A hereto in 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 (vii) amend any other term of the Offer in a manner materially adverse to the holders of Shares.
(b) Subject to the Shares. Notwithstanding terms and conditions thereof, the foregoingOffer shall remain open until midnight, Offeror mayNew York City time, without at the consent end of the Companytwentieth (20th) business day after the date that the Offer is commenced (the “Expiration Date”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, this Section 2.01(b) or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Unless this Agreement or the Offer is terminated in accordance with its terms, Purchaser shall extend the Offer from time to time: (i) extend if the Offer beyond any scheduled expiration date Minimum Condition is not satisfied on or before the Expiration Date; (the initial scheduled expiration date being 20 business days following commencement of the Offerii) 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined Offer set forth in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and clause (ii) extend of the second paragraph of the Tender Offer for Conditions are not satisfied on or before the Expiration Date; (iii) if the condition set forth in clause (d) of Annex A is not satisfied and is the sole condition remaining unsatisfied and the Company is using its reasonable best efforts to satisfy such condition; or (iv) if any period required by any applicable Law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff of the SEC (the “SEC Staff”) thereof applicable to the OfferOffer requires such extension. The limitations regarding Purchaser shall extend the terms and conditions Offer for up to five (5) business days after the satisfaction or waiver of the Offerconditions set forth in clauses (i), (ii) or (iii) in the immediately preceding sentence, or for such period as may be required by any applicable Law, rule, regulation, interpretation or position set forth with respect to the condition in clause (iv) in the immediately preceding sentence; provided, however, that Purchaser shall not be required to extend the Offer beyond the Outside Date. Unless this Agreement or the Offer is terminated in accordance with its terms, Purchaser may in its sole election extend the Offer from time to time if any of the Tender Offer Conditions, other than the conditions set forth in the second preceding sentence of this Section 2.01(b), are not satisfied or waived on or before the Expiration Date. If all of the Tender Offer Conditions are satisfied, but the number of Shares that have been validly tendered and the immediately preceding sentences, shall not be applicable withdrawn in the event this Agreement Offer, together with any Shares then owned by Parent is terminated pursuant less than 90% of the outstanding Shares on a Fully Diluted Basis, Purchaser may, in its sole discretion, and subject to Section 8.1(dthe first sentence of subsection (c), commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) of this Agreement. for three to 20 business days to acquire additional outstanding Shares.
(c) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and this AgreementParent shall cause it to, Offeror shall promptly after the Expiration Date, accept for payment , and pay for, for (after giving effect to any required withholding Tax) all Shares that have been validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of Offer. If Purchaser shall commence a subsequent offering period in connection with the Offer, subject Purchaser shall accept for payment and pay for (after giving effect to compliance with Rule 14e-1(cany required withholding Tax) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offeradditional Shares validly tendered during such subsequent offering period.
(bd) As soon promptly as reasonably practicable on the date of the commencement of the Offer, Offeror Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer which will Offer. The Schedule TO shall contain the or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and form forms of the related letter of transmittal and forms of notice of guaranteed delivery and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "“Offer Documents"”). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Each of Parent, Offeror Purchaser and the Company each agree agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will , and Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable lawsLaw. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 2.01(d). Parent and Purchaser shall give the Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof such documents being filed with the SEC; provided that Offeror will attempt SEC or disseminated to give the Company holders of Shares. Parent and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel with any comments Offeror and its that Parent, Purchaser or their counsel may receive from the SEC or its staff the SEC Staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments and shall provide the event that Company and its counsel with a reasonable opportunity to participate in the Offer is terminated response of Parent or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares Purchaser to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 3 contracts
Sources: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/)
The Offer. (a) Provided that nothing shall have occurred that would result in give rise to a failure right to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoterminate this Agreement pursuant to Article 8, Parent Buyer shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act ▇▇▇▇ ▇▇▇) the Offer as promptly as reasonably practicable after the date of 1934, as amended this Agreement but in no event later than the fifteenth (15th) Business Day following the "Exchange Act")) a tender offer (as amended from time to time in accordance with date of this Agreement, the "Offer") to purchase all . The obligations 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 Buyer to accept for payment payment, and to pay for for, any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of satisfaction or waiver (to the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of extent permitted under 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 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 set forth in Annex I hereto(the “Offer Conditions”). Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend The date on which Buyer commences the Offer and is referred to make any other changes in as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the Offer Conditions, Buyer shall, at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the ▇▇▇▇ ▇▇▇) thereafter), pay (by delivery of funds to the depositary for the Offer) for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing,”); provided, however, that unless -------- ------- previously approved if, but for this proviso, the Closing would have occurred on a Specified Quarter End Date, then, if elected by Buyer, the Closing shall take place on the first Business Day following the latest Specified Quarter End Date for a particular fiscal quarter, or on such other date to be specified by the Company Parties; provided, further, that Buyer shall confirm in writingwriting to the Company, Offeror will not at the time of such election, that all Offer Conditions were satisfied on the date the Closing would have occurred but for the immediately preceding proviso and that all such Offer Conditions (other than any Offer Condition the waiver of which would be prohibited by Law and except where the Company’s Willful Breach after delivery of such notice proximately caused the failure of such Offer Condition to be satisfied) shall be deemed to be satisfied as of such first Business Day. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of each Share pursuant to the preceding sentence shall be paid, net of any applicable Tax withholding with respect to the Offer Consideration pursuant to Section 2.09, to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, Buyer shall not:
(i) decrease waive or change the price per Share payable in Minimum Condition (except to the Offer, extent permitted under paragraph (A) of Annex I);
(ii) decrease the maximum number of Shares to be purchased in the Offer, Offer Consideration;
(iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or (vii) amend otherwise amend, modify or supplement any other term of the Offer Conditions or terms of the Offer in a manner adverse to the holders of Shares.
(d) The Offer shall initially expire at 9:00 a.m. (New York City time), or at such other time as the Shares. Notwithstanding Parties may mutually agree, on the foregoing, Offeror may, without date that is the consent later of the Company, (i) extend twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Offer beyond any scheduled expiration date (▇▇▇▇ ▇▇▇) following the initial scheduled expiration date being 20 business days following commencement of the OfferOffer and (ii) for a period not to extend beyond July 31, 1998, if at any scheduled such date that is six (6) Business Days after the date of the EGM (such initial expiration date and time of the Offer, any of the conditions “Initial Expiration Time”) or, if the Offer has been extended pursuant to Offeror's obligation to accept for payment, and pay for, Shares (including, in accordance with respect to the Financing ConditionSection 2.01(e), the consummation of date and time to which the sale of Offer has been so extended (the Senior Notes Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article 8, Buyer may or shall, as defined in Section 4.2(d)) shall not be satisfied or waivedapplicable, until such time as such conditions are satisfied or waived and (ii) extend the Offer from time to time as follows:
(i) for any the minimum period as required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the NASDAQ Global Select Market (the “NASDAQ”) applicable to the Offer. The limitations regarding ; or
(ii) if, at the terms and conditions then-scheduled Expiration Time, any of the OfferOffer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is not prohibited under this Agreement and applicable Law), then Buyer shall extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time occurring during the first one hundred eighty (180) days following the date hereof, the Offer Condition set forth in paragraph (B) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer shall be permitted to extend the second preceding and the immediately preceding sentencesOffer on such occasion for up to twenty (20) Business Days; provided further, however, that (x) Buyer shall not be applicable in required to extend the event this Agreement is terminated Offer to a date later than the End Date (as the End Date may be extended pursuant to Section 8.1(d8.01(b)(i)) of this Agreement. Subject and (y) if the sole then-unsatisfied Offer Condition is the Minimum Condition, Buyer shall not be required to the terms and conditions of extend the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant on more than two (2) occasions in consecutive periods of up to the Offer that Offeror becomes obligated ten (10) Business Days each (with each such period to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(cend at 5:00 p.m. (New York City time) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date last Business Day of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect such period) (or such other duration as may be agreed to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror by Buyer and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this AgreementCompany).
Appears in 3 contracts
Sources: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following (and in any event within seven Business Days) after the date hereof, but in no event later than five business days after the initial public announcement of the OfferPurchaser shall (and Parent shall cause Purchaser to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares of common stockShares at the Offer Price, par value $0.005 per share, of the Company subject to: (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 i) there being validly tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the expiration date of the Offer and not withdrawn a Expiration Date that number of Shares which, together with any the number of Shares (if any) then owned of record by Parent or Subthe Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least ninety (90%) percent a majority of the Shares then outstanding (determined on a fully-fully diluted basis assuming conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the "“Minimum Condition"”), ; and (ii) the receipt of cash proceeds satisfaction, or waiver by Parent or the Purchaser, of the Financing other conditions set forth herein and in Annex I.
(as defined b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or the Purchaser, of the other conditions set forth herein and in Section 4.2(dAnnex I, the Purchaser shall (and Parent shall cause the Purchaser to) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Commitments (as defined Offer in said Section 4.2(d)) or such other terms as Parent accordance with this Agreement, including the Minimum Condition 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 set forth in Annex I hereto. Offeror I. Parent and the Purchaser expressly reserves reserve the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- otherwise contemplated by this Agreement or as previously approved by the Company in writing, Offeror will the Purchaser shall not (i) decrease the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 Offer, (iii) reduce the maximum number of Shares sought to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (viiv) amend any other term of the other conditions to the Offer set forth in Annex I in a manner adverse to the holders of Shares or (vi) extend the SharesExpiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days from and including the date of the commencement of the Offer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date on which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If at the scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth herein and in Annex I) have not been satisfied, or waived by Parent or the Purchaser, and if this Agreement shall not have been terminated in accordance with Article 7, the Purchaser may (in its sole discretion, without consent of the Company) and, to the extent requested by the Company in writing prior to such scheduled Expiration Date, shall (and Parent shall cause the Purchaser to) extend the Offer for successive periods of up to 20 Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer if any condition to the Offer has not been satisfied on or prior to May 22, 2013 (the “Outside Date”), beyond the Outside Date. In addition, if this Agreement shall not have been terminated in accordance with Article 7, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) Notwithstanding the foregoing, Offeror if necessary to obtain sufficient Shares (including Shares issuable upon the exercise of the Top-Up Option) to reach the Short Form Threshold, the Purchaser may, without in its sole discretion (and Parent may cause the consent Purchaser to), provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of up to 10 Business Days, the length of the Company, (i) extend initial “subsequent offering period” and each extension thereof to be determined by the Offer beyond any scheduled expiration date (Purchaser in its sole discretion. Subject to the initial scheduled expiration date being 20 business days following commencement terms and conditions of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of this Agreement and the Offer, any of the conditions to Offeror's obligation to Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and pay for, all Shares (including, with respect that are validly tendered pursuant to the Financing Condition, Offer during such “subsequent offering period”. The Offer Documents will provide for the consummation possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waivedCompany, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event except if this Agreement is terminated pursuant to Section 8.1(dArticle 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement. Subject Agreement is terminated prior to the terms and conditions purchase of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of in the Offer, subject the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to compliance return, in accordance with Rule 14e-1(c) under the Exchange Act. Subject applicable Law, all tendered Shares to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
(bh) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase and Purchase, a form of the related letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents will comply in all material respects with applicable federal securities laws to be disseminated to holders of Shares, as and any other applicable lawsto the extent required by the Exchange Act. Parent, Offeror The Company shall promptly provide Parent and the Purchaser in writing, for inclusion in the Offer Documents, all information concerning the Company each that is required under the Exchange Act to be included in the Offer Documents. Parent and the Purchaser, 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 Documents, if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary respect or as otherwise required by applicable Law, and Parent and the Purchaser agree to cause the Offer Documents Documents, as so corrected corrected, 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 federal securities laws and any other applicable lawsthe Exchange Act. The Company and its counsel shall be given an a reasonable opportunity to review the Schedule TO and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt , and Parent and the Purchaser shall give due consideration to give the reasonable additions, deletions or changes suggested thereto by the Company and its counsel as much time prior to filing to so review counsel. In addition, Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel with copies of any comments Offeror written comments, and its shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt thereofof such comments, and any written or oral responses thereto. In the event that the Offer is terminated or withdrawn by OfferorThe Company and its counsel shall be given a reasonable opportunity to review any such written responses, and Parent and Sub the Purchaser shall cause all tendered Shares to be returned give due consideration to the registered holders of the Shares represented reasonable additions, deletions or changes suggested thereto by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Company and its counsel.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Allergan Inc), Merger Agreement (MAP Pharmaceuticals, Inc.)
The Offer. (a) Provided that nothing no event shall have occurred that would result in give rise to a failure right to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoterminate this Agreement pursuant to Article 8, Parent Buyer shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act ▇▇▇▇ ▇▇▇) the Offer as promptly as reasonably practicable after the date of 1934, as amended this Agreement but in no event later than the tenth (10th) Business Day following the "Exchange Act")) a tender offer (as amended from time to time in accordance with date of this Agreement, the "Offer") to purchase all . The obligations 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 Buyer to accept for payment payment, and to pay for for, any Shares validly tendered in and not properly withdrawn pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of satisfaction or waiver (to the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of extent permitted under 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 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 set forth in Annex I hereto(the “Offer Conditions”). Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend The date on which Buyer commences the Offer and is referred to make any other changes in as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the Offer Conditions, Buyer shall (and Parent shall cause Buyer to), at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the ▇▇▇▇ ▇▇▇) thereafter), pay (by delivery of funds to the depositary for the Offer) for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing”). The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of each Share pursuant to the first sentence of this Section 2.01(b) shall be paid, net of any applicable Tax withholding with respect to the Offer Consideration pursuant to Section 2.09, to the seller of such Share in cash, without interest, on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of, or conditions to, the Offer; provided, howeverthat, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Buyer shall not (and Parent shall cause Buyer not to):
(i) decrease waive or change the price per Share payable in Minimum Condition (except to the Offer, extent contemplated under paragraph (A) of Annex I);
(ii) decrease the maximum number of Shares to be purchased in the Offer, Offer Consideration;
(iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or (vii) amend otherwise amend, modify or supplement any other term of the Offer Conditions or terms of the Offer in a manner adverse to the holders of Shares.
(d) The Offer shall initially expire at 9:00 a.m. (New York City time), or at such other time as the Shares. Notwithstanding Parties may mutually agree, on the foregoing, Offeror may, without date that is the consent later of the Company, (i) extend twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Offer beyond any scheduled expiration date (▇▇▇▇ ▇▇▇) following the initial scheduled expiration date being 20 business days following commencement of the OfferOffer and (ii) for a period not to extend beyond July 31, 1998, if at any scheduled six (6) Business Days after the date of the EGM (such initial expiration date and time of the Offer, any of the conditions “Initial Expiration Time”) or, if the Offer has been extended pursuant to Offeror's obligation to accept for payment, and pay for, Shares (including, in accordance with respect to the Financing ConditionSection 2.01(e), the consummation of date and time to which the sale of Offer has been so extended (the Senior Notes Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article 8, Buyer may or shall (in which case Parent shall cause Buyer to), as defined in Section 4.2(d)) shall not be satisfied or waivedapplicable, until such extend the Offer from time to time as such conditions are satisfied or waived follows:
(i) Buyer shall (and (iiParent shall cause Buyer to) extend the Offer for any the minimum period as required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the NYSE applicable to the Offer. The limitations regarding ;
(ii) if, at the terms and conditions then-scheduled Expiration Time, any of the OfferOffer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is not prohibited under this Agreement and applicable Law), then Buyer shall (and Parent shall cause Buyer to) extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time, the Offer Condition set forth in paragraph (B) or paragraph (C) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer may extend the second preceding and the immediately preceding sentencesOffer on such occasion for periods of up to twenty (20) Business Days; provided further, that (x) Buyer shall not be applicable required to extend the Offer to a date later than the End Date (as the End Date may be extended pursuant to Section 8.01(b)(i)) and (y) if the sole then-unsatisfied Offer Condition is the Minimum Condition, Buyer shall not be required to extend the Offer on more than two (2) occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company); or
(iii) Buyer may extend the Offer to such other date and time as may be mutually agreed by Parent and the Company in writing.
(f) Following the Acceptance Time, Buyer shall (and Parent shall cause Buyer to) (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 promulgated under the 1934 Act of not less than ten (10) Business Days (calculated in accordance with Rule 14d-1(g)(3) promulgated under the 1934 Act). In the event that prior to the expiration of the Subsequent Offering Period, Buyer or one of its Affiliates has publicly indicated its intention to, subject to the terms of this Agreement, effectuate the Asset Sale, Buyer shall (and Parent shall cause Buyer to) (and the Offer Documents shall so indicate) extend the Subsequent Offering Period for at least five (5) Business Days to permit any remaining Minority Shareholders to tender their Shares in exchange for the Offer Consideration (such extension, the “Minority Exit Offering Period”).
(g) The Offer may not be terminated prior to the Initial Expiration Time or the then-scheduled Expiration Time (as the same may be extended pursuant to Section 2.01(e)) unless this Agreement is validly terminated pursuant to Section 8.1(d8.01. If this Agreement is validly terminated pursuant to Section 8.01, Buyer shall (and Parent shall cause Buyer to) of this Agreement. Subject to the terms promptly (and conditions of in any event within twenty-four (24) hours following such valid termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement, Offeror shall accept Agreement by Buyer prior to the acceptance for payment , and pay for, all payment for Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for paymentOffer, Buyer shall (and Parent shall cause Buyer to) promptly return, and pay forshall cause any depositary acting on behalf of Buyer to return, pursuant in accordance with applicable Law, all tendered Shares to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(cregistered holders thereof. Nothing in this Section 2.01(g) shall affect any termination rights under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferArticle 8.
(bh) As soon as practicable on the date of the commencement of the OfferOffer Commencement Date, Offeror Parent and Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO”), which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and other appropriate ancillary offer documents required to be included therein (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments or supplements thereto and including exhibits thereto, the “Offer Documents"). The ”) and (ii) cause the Offer Documents will comply in all material respects with to be disseminated to holders of Shares to the extent required by applicable United States federal securities laws Laws and any other applicable lawsLaw. The Company shall promptly furnish to Parent and Buyer all information concerning the Company required by the 1934 Act and applicable Law, or as reasonably requested by Parent, Offeror to be set forth in the Offer Documents. Each of Parent and Buyer, on the one hand, and the Company each agree Company, on the other hand, agrees promptly to promptly correct any information provided by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that it such information shall have become (or shall have become known to be) false or misleading in any material respect. Offeror will take all steps necessary Parent and Buyer shall use their reasonable best efforts to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities laws Laws and any other applicable lawsLaw. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Buyer shall consider in good faith including in such document (and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give thereto) all comments reasonably proposed by the Company and its counsel as much time prior to filing to so review counsel. Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Buyer shall provide the Company and its counsel with (A) any comments Offeror or other communications, whether written or oral, that Parent and its Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, response of Parent and Sub Buyer to those comments and to provide comments on that response (and Parent and Buyer shall cause consider in good faith including all tendered Shares to be returned comments reasonably proposed by the Company and its counsel), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the SEC or other Governmental Authorities to the registered holders of the Shares represented extent such participation is not prohibited by the certificate SEC or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)other Governmental Authorities.
Appears in 3 contracts
Sources: Purchase Agreement (Patheon N.V.), Purchase Agreement (Thermo Fisher Scientific Inc.), Purchase Agreement (Patheon N.V.)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following after the date hereof, hereof (but in no event later more than five business ten (10) days after the initial public announcement date of the Offerthis Agreement), commence Merger Sub shall (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) , a tender offer (as amended from time the “Offer”) to time purchase all of the outstanding shares of Company Common Stock at a price per share equal to $12.80 net to seller in cash, without interest (such amount or any higher amount per share of Company Common Stock paid pursuant to the Offer 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"“Offer Price”), at a price subject to any deduction or withholding of not less than $10.50 per ShareTaxes required by Applicable Law, net on the terms and subject to the seller conditions set forth in cashthis Agreement. For purposes The consummation of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as and the "Offeror." The obligation of Offeror Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock validly tendered in and not withdrawn pursuant to the Offer Offer, shall be subject only to to: (i) the condition that there shall be being validly tendered and “received” (as defined by Section 251(h)(6) of the DGCL) in the Offer and not properly withdrawn prior to the Expiration Time that number of shares of Company Common Stock (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) that, together with the number of shares of Company Common Stock then owned by Parent, Merger Sub or any of their respective “affiliates” (as defined by Section 251(h)(6) of the DGCL), represents a majority of the shares of Company Common Stock then outstanding (the “Minimum Condition”), (ii) this Agreement not having been validly terminated in accordance with its terms (the “Termination Condition”) and (iii) the satisfaction, or waiver (to the extent such waiver is permitted by Applicable Law and this Agreement) by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit B (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(b) Subject to the satisfaction, or waiver by Merger Sub in accordance with the terms of the Offer prior to the expiration date this Agreement, of the Offer Conditions, Merger Sub shall (and not withdrawn a number of Shares whichParent shall cause Merger Sub to) (i) at or as promptly as practicable following the Expiration Time (in any event, together with any Shares then owned by Parent or Subno later than the Business Day immediately following the date on which the Expiration Time occurs), represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis accept for payment (the "Minimum Condition")time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the receipt Expiration Time (and, in any event, no later than the Business Day immediately following the date on which the Expiration Time occurs), pay the aggregate Offer Price (by delivery of cash proceeds funds to the depositary for the Offer) for, all shares of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby Company Common Stock validly tendered and not properly withdrawn pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall Offer. The Parties agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and Merger Sub’s obligation to make accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer in accordance with the foregoing are not, and shall not be, subject to any condition other changes in than the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the OfferOffer in accordance with this Agreement, including the Offer Conditions. Merger Sub expressly reserves the right (in its sole discretion) to (i) increase the Offer Price, (ii) waive any Offer Conditions (other than the Minimum Condition and the Termination Condition) and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Merger Sub shall not, and Parent shall cause Merger Sub not to: (iA) decrease the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (viB) change the form of consideration payable in the Offer, (C) reduce the number of shares of Company Common Stock to be purchased in the Offer, (D) amend, modify or waive the Minimum Condition or the Termination Condition, (E) add any condition to the Offer, make any Offer Condition more difficult to satisfy or otherwise modify any Offer Condition in a manner that would delay consummation of the Offer, (F) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act, (G) reduce the time period during which the Offer shall remain open, (H) extend the Expiration Time other than in accordance with this Agreement or (viiI) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Company Common Stock (other than Parent, Merger Sub and their respective Affiliates) or the Shares. Notwithstanding Company.
(d) Unless extended in accordance with the foregoingterms of this Agreement, Offeror maythe Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such time, without the consent “Initial Expiration Time”), or if the Initial Expiration Time has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Time, or such later time and date to which the Initial Expiration Time has been extended in accordance with this Agreement, the “Expiration Time”).
(e) Parent and Merger Sub agree that, if as of any scheduled Expiration Time, any of the Offer Conditions is not satisfied (other than the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the Expiration Time) or, in Merger Sub’s sole discretion, waived (if such Offer Condition is permitted to be waived pursuant to this Agreement and Applicable Law), then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of time of up to five business days each (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (or such longer period as the Parties may agree in writing) in order to permit the satisfaction of such conditions; provided that, if at any scheduled Expiration Time, the only unsatisfied Offer Condition (other than the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the Expiration Time) is the Minimum Condition, (i) Merger Sub shall not be required to extend the Offer for more than a total of twenty (20) business days (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (ii) if prior to any scheduled Expiration Time on or after such twentieth (20th) business day referred to in the foregoing clause (i) of this proviso, Merger Sub has received from the Company a written notice of the Company’s election that Merger Sub not so extend the Offer, Merger Sub shall not (iand Parent shall not permit Merger Sub to) extend the Offer beyond any such scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect Expiration Time. Notwithstanding anything to the Financing Conditioncontrary in the foregoing, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)A) Merger Sub shall not be required to, and without the Company’s prior written consent shall not (and Parent shall not permit Merger Sub to), extend the Offer to a date later than the Termination Date, (B) Merger Sub shall not (and Parent shall not permit Merger Sub to), without the Company’s prior written consent, extend the Offer if all Offer Conditions have been satisfied or waived, until such time as such conditions are satisfied or waived and (iiC) Merger Sub shall extend the Offer for any period or periods required by any ruleApplicable Law, regulationincluding applicable rules, interpretation regulations, interpretations or position positions of the Securities and Exchange Commission (the "SEC") SEC or its staff, or the staff thereof applicable Nasdaq Global Select Market.
(f) Merger Sub shall not (and Parent shall not permit Merger Sub to) terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company, except if this Agreement is validly terminated pursuant to Article IX. If this Agreement is validly terminated pursuant to Article IX, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one business day) irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer is validly terminated prior to the Acceptance Time, Merger Sub shall (and Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
(g) Parent shall cause to be provided to Merger Sub, on a timely basis, all of the funds necessary to purchase all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer. The limitations regarding the terms , and conditions shall cause Merger Sub to perform, on a timely basis, all of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of Merger Sub’s obligations under this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(bh) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all amendments, supplements or amendments thereto and including exhibits thereto, the "Offer Documents"“Schedule TO”). The Schedule TO shall include as exhibits (without limitation) the Offer Documents will comply in all material respects with applicable federal securities laws to Purchase, a form of letter of transmittal, a form of summary advertisement and any other applicable laws. Parent, Offeror a form of notice of guaranteed delivery (the Schedule TO and the Company each agree documents included therein pursuant to promptly correct any information provided by it for use in which the Offer Documents if shall be made, together with any amendments and supplements thereto, being referred to herein as the extent that it “Offer Documents”). The Company shall have become false or misleading in any material respectpromptly furnish all information concerning the Company and its Affiliates to Parent as may be reasonably requested by Parent to be included therein. Offeror will take all steps necessary to Parent and Merger Sub shall promptly cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities laws all Applicable Laws, including the Exchange Act. If, prior to the Acceptance Time, any event occurs with respect to Parent or any Affiliate of Parent, or any change occurs with respect to other information included by Parent in the Offer Documents (other than information supplied the Company for inclusion therein), on the one hand, or any event occurs with respect to the Company or any Subsidiary of the Company, or any change occurs with respect to other information supplied by the Company for inclusion in the Offer Documents, on the other hand, upon becoming aware of such information Parent or the Company, as applicable, shall promptly notify the other of such event and shall cooperate with the other in the prompt filing with the SEC of any other applicable lawsnecessary amendment or supplement to the Offer Documents and, as required by Applicable Law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders. The Parent shall promptly notify the Company upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Offer Documents and shall provide the Company with copies of all correspondence between Parent and its counsel respective Representatives, on the one hand, and the SEC, on the other hand. Parent shall be given use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Offer Documents. Notwithstanding the foregoing, prior to filing or mailing the Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Parent shall (i) provide the Company with an opportunity to review and comment on such document or response (including the Offer Documents proposed final version of such document or response), (ii) consider in good faith all comments reasonably proposed by the Company and any amendments thereto (iii) not file or mail such document or respond to the SEC prior to receiving the filing thereof with approval of the SEC; provided that Offeror will attempt to give Company, which approval shall not be unreasonably withheld, delayed or conditioned. Without limiting the foregoing, the Company and its counsel as much time prior shall have the right to filing participate with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC related to the Offer, the Merger or the other Contemplated Transactions to the extent such participation is not prohibited by the SEC. Parent and Merger Sub shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so review and comment as Offeror believes is reasonably practicable qualified) required to be taken under the circumstances. Offeror will provide Exchange Act or any applicable foreign or state securities laws and the Company rules and its counsel regulations thereunder in connection with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after and the receipt thereofMerger. In Parent shall be responsible for 100% of the event that fees, costs and expenses (except for the fees, costs and expenses of the Company’s advisors), including any filing fees, associated with the preparation, filing and mailing of the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Documents.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure Subject to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretothis Agreement, Parent shall or shall cause Sub toshall, as promptly as practicable following the date hereof, but and in no event later than five ten business days after the initial public announcement of the Offerdate hereof, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of Offer at 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 ShareOffer Price, net to the seller in cash. For purposes but subject to any required withholding of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "OfferorTaxes."
(b) The obligation initial expiration date of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be midnight (New York City time) on the date that is 20 business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Date” and any expiration time and date established pursuant to an extension of the Offer as so extended, also an “Expiration Date”).
(c) The obligations of Parent to commence the Offer and accept for payment, and pay for, any Public Shares tendered pursuant to the Offer are subject only to (i) the conditions set forth in Exhibit 1 and (ii) the non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall be have been validly tendered in accordance and not properly withdrawn a number of Public Shares which constitutes at least a majority of the outstanding Public Shares (assuming the exercise of all options, warrants and other rights to purchase shares of Common Stock and excluding from the numerator of such calculation any shares held by stockholders that are affiliated with the Company, including directors and officers of the Company, as of the Acceptance Time) (the “Majority-of-the-Minority Condition”).
(d) Parent expressly reserves the right (x) to increase the Offer Price and (y) to waive any condition to the Offer or modify the terms of the Offer prior to Offer, except that, without the expiration date consent of the Offer and not withdrawn a number of Shares whichCompany, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease reduce the price per Share payable in number of Public Shares subject to the Offer, (ii) decrease except as provided in Section 4.4, reduce the maximum number of Shares to be purchased in the OfferOffer Price, (iii) impose conditions add to the Offer in addition to those conditions set forth in Annex I heretoExhibit 1 or modify any condition set forth in Exhibit 1 in any manner adverse to the holders of Public Shares, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as otherwise provided in the next sentencethis Section 1.1(d), extend the Offer, (v) waive or modify the Majority-of-the-Minority Condition, or (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Offeror Parent may, in its discretion, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 for one or more consecutive increments of not more than ten business days following commencement of the Offer) for a period not to extend beyond July 31, 1998each, if at any otherwise scheduled expiration date Expiration Date of the Offer, Offer any of the conditions to Offeror's Parent’s obligation to accept for payment, and pay for, purchase Public Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall are not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the OfferOffer or (iii) make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11. The limitations regarding In addition, if at any otherwise scheduled Expiration Date of the Offer any condition to the Offer is not satisfied or waived, Parent shall extend the Offer at the request of the Company for one or more consecutive increments of not more than ten business days each until the earlier of the date that is 40 business days after commencement of the Offer (the “Outside Date”) and the termination of this Agreement in accordance with its terms. In addition, Parent shall, if requested by the Company, make available a subsequent offering period in accordance with Exchange Act Rule 14d-11 of not less than ten business days; provided that Parent shall not be required to make available such a subsequent offering period in the event that, prior to the commencement of such subsequent offering period, MUFG and its Subsidiaries collectively hold at least 90% of the outstanding shares of Common Stock (the requirement that MUFG and its Subsidiaries collectively hold at least 90% of the outstanding shares of Common Stock being the “90% Requirement”).
(e) On the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject subject to the terms and conditions of the Offer and this Agreement, Offeror Parent shall accept for payment , and pay for, for all Public Shares validly tendered and not withdrawn pursuant to the Offer that Offeror Parent becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. For purposes of this Agreement, subject the term “business day” shall have the meaning assigned to compliance with such term in Rule 14e-1(c14d-1(g)(3) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Bank of Tokyo - Mitsubishi Ufj, LTD), Merger Agreement (Unionbancal Corp), Merger Agreement (Mitsubishi Ufj Financial Group Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 8.1, as promptly as practicable following the date hereof and in any event within five (5) Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing), Parent and Merger Sub (i) shall amend the Offer to reflect the execution of this Agreement and the terms hereof, but (ii) shall file an amendment to their Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and all other necessary documents and exhibits with the Securities and Exchange Commission (the “SEC”) and make all deliveries, filings, publications, mailings and telephonic notices required to be made in no event later than five business days after connection with the initial public announcement Offer under the federal securities Laws, including Regulations 14D and 14E of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act")”) a tender offer (as amended from time such documents filed or required to time in accordance be filed with this Agreementthe SEC and such other filings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the "Offer"“Offer Documents”) and (iii) shall use their reasonable best efforts 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 consummate the Offer. If the Offer is consummated, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror will cause Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock tendered in pursuant to the Offer shall be Offer, subject only to the conditions that (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a such number of Shares whichshares of Company Common Stock that, together with any Shares then when added to the shares of Company Common Stock already owned by Parent or SubParent, represents Merger Sub and their Subsidiaries, would constitute at least ninety (90%) percent a majority of the Shares shares of Company Common Stock outstanding determined on a fully-diluted basis Fully Diluted Basis immediately prior to the date of expiration of the Offer (the "“Minimum Condition"), (ii) the 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 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 (iiiii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition hereto (including collectively with the Minimum Condition, provided that no such waiver the “Tender Offer Conditions”) have been satisfied or waived in writing by Parent.
(b) Without the prior written consent of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in Parent and Merger Sub shall not decrease the next sentence, extend the Offer, (vi) Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of shares of Company Common Stock, except as provided in this Agreement. The initial expiration date of the SharesOffer shall be December 27, 2006 (the “Expiration Date,” unless the period of time for which the Offer is open shall be extended in accordance with the immediately following sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire); provided, however, that Parent and Merger Sub may provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). Notwithstanding the foregoing, Offeror ,
(i) Parent and Merger Sub may, without the consent of the Company, (i) from time to time, in their sole discretion, extend the Expiration Date for such period (not to exceed ten (10) Business Days on any single occasion) as Parent and Merger Sub may determine, to a date that is no later than March 31, 2007 (A) if immediately prior to the Expiration Date any of the Tender Offer beyond Conditions are not satisfied or waived by Parent, or (B) if immediately prior to the Expiration Date, the Minimum Condition is satisfied but the number of shares of Company Common Stock that have been validly tendered (and not withdrawn) pursuant to the Offer is less than 90% of the number of shares of Company Common Stock outstanding determined on a Fully Diluted Basis;
(ii) if any of the Tender Offer Conditions (other than the Minimum Condition) is not satisfied on any scheduled expiration date Expiration Date, then, if requested by the Company, Parent and Merger Sub shall extend the Expiration Date one or more times (the initial scheduled expiration date period of each such extension to be determined by Merger Sub) for up to fifteen (15) Business Days in the aggregate for all such extensions), provided, that at the time of such extension any such condition is reasonably capable of being 20 business days following commencement satisfied and the Company has not received an Acquisition Proposal that has not been withdrawn;
(iii) if (A) the Company has not received an Acquisition Proposal that has not been withdrawn, (B) the failure to achieve the Minimum Condition is not a result of the OfferCompany having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) for the Tender Offer Conditions (other than the Minimum Condition) have been satisfied or, if not then satisfied, either (1) are reasonably capable of being satisfied within five Business Days or (2) are unsatisfied (or not reasonably capable of being satisfied) as a period not to extend beyond July 31result of a breach of this Agreement by Parent or Merger Sub, 1998then, if at any scheduled expiration date Expiration Date, the Minimum Condition shall not have been satisfied, at the request of the Company, Parent and Merger Sub shall extend the Expiration Date one or more times for such period (not to exceed five (5) Business Days on any single occasion) as may be requested by the Company, provided, that in no event shall Parent and Merger Sub be required to extend the Expiration Date more than an aggregate of ten (10) Business Days pursuant to this clause (iii);
(iv) if (A) the Company receives an Acquisition Proposal ten (10) or fewer Business Days prior to a scheduled Expiration Date, then, if on such scheduled Expiration Date, the Minimum Condition is not satisfied and (B) the Company provides Parent with a written request that Merger Sub extend the Expiration Date, then Parent and Merger Sub shall extend the Offer, to such date as is necessary to assure that the Offer does not expire until ten (10) Business Days from the date the Company received such Acquisition Proposal, provided, that the Company may not deliver such a request on more than one occasion; and
(v) Parent and Merger Sub may (A) increase the Offer Price and extend the Expiration Date to the extent required by applicable Law in connection with such price increase and (B) subject to prior consultation with the Company, extend the Expiration Date to the extent otherwise required by applicable Law, in each case in Parent’s and Merger Sub’s reasonable discretion and without the Company’s consent. Parent and Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the written consent of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable Company except in the event that this Agreement is terminated pursuant to Section 8.1(d8.1 hereof.
(c) of this Agreement. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction or waiver of the Tender Offer Conditions as of any Expiration Date, Offeror shall including the Minimum Condition, Parent will cause Merger Sub to accept for payment , and pay for, for any and all Shares shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Offeror becomes promptly after such Expiration Date (such date as Merger Sub shall be obligated to accept for paymentpayment any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer, the “Acceptance Date”). For the avoidance of doubt, and pay fornotwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and Parent shall cause Merger Sub not to) accept for payment any shares of Company Common Stock tendered pursuant to the Offer as soon as practicable after expiration of unless the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferMinimum Condition shall have been satisfied.
(bd) As soon as practicable Each of Parent and Merger Sub, on the date of the commencement of the Offerone hand, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree Company, on the other hand, agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and Merger Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws and any other applicable lawsLaws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the in advance of their filing thereof with the SEC; provided that Offeror will attempt SEC and dissemination to give stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel as much time prior to filing to so review copies in writing of any comments and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide shall inform the Company and its counsel with of any oral comments Offeror and its that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereofof such comments. In the event that the Offer is terminated or withdrawn by Offeror, Parent The Company and Sub its counsel shall cause all tendered Shares be given a reasonable opportunity to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)review any such written and oral comments and proposed responses.
Appears in 3 contracts
Sources: Merger Agreement (Pilgrims Pride Corp), Merger Agreement (Gold Kist Inc.), Merger Agreement (Gold Kist Inc.)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any So long as none of the conditions events set forth in paragraphs clauses (a) through (ih) of Annex I heretohereto shall have occurred or exist, the Purchaser shall, and Parent shall or shall cause Sub the Purchaser to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time promptly as practicable after the date hereof, but in accordance with this Agreementany event not later than May 4, 1998, the "Offer") Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "such 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 initial expiration date for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered twentieth business day from and after the date the Offer is commenced, including the date of commencement as the first business day in accordance with Rule 14d-2 under the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis Exchange Act (the "Minimum ConditionExpiration Date"), (ii) the receipt of cash proceeds of the Financing (. As promptly 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Conditionpracticable, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and together with the documents therein pursuant to which the Offer will be made, and with any supplements or amendments thereto, the staff thereof applicable "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase") which shall be mailed to the holders of Shares with respect to the Offer. The limitations regarding obligation of Parent and the terms Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to there being validly tendered and conditions not withdrawn prior to the expiration of the Offer, as that number of Shares which represents at least 66-2/3% of the Shares outstanding on a fully diluted basis (without giving pro forma effect to the potential issuance of any Shares issuable under the Stock Option Agreement) (the "Minimum Condition") and to the satisfaction or waiver of the other conditions set forth in Annex I hereto ("fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding employee stock options). Without the second preceding and prior written consent of the immediately preceding sentencesCompany, the Purchaser shall not be applicable (i) decrease the Offer Price or change the form of consideration payable in the event this Agreement Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, or (iii) amend any other term of the Offer in any manner adverse to the holders of any Shares; provided, however, that if on the initial scheduled Expiration Date, the sole condition remaining unsatisfied is terminated pursuant the failure of the waiting period under the HSR Act (as hereinafter defined) to Section 8.1(dhave expired or been terminated, the Purchaser shall, and Parent shall cause the Purchaser to, extend the expiration date from time to time until two business days after the expiration of the waiting period under the HSR Act.
(b) of this Agreement. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction or waiver of all the conditions of the Offer set forth in Annex I hereto as of the Expiration Date, Offeror shall the Purchaser will accept for payment , and pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferExpiration Date.
(bc) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and any other applicable laws. Parentand, Offeror and on the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary to cause the Offer Documents as so corrected to be date filed with the SEC and on the date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders of Sharesmake the statements made therein, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders light of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).circumstances under which they were made, not misleading,
Appears in 3 contracts
Sources: Merger Agreement (Hein Werner Corp), Merger Agreement (Snap on Pace Co), Merger Agreement (Snap on Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy accordance with Section 8.1 and none of the events described in any of the conditions set forth in paragraphs (a) through or (ib) of Annex I heretoIII hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the "rules and regulations promulgated thereunder, the “Exchange Act"”)) a tender offer the Offer within ten (as amended from time to time in accordance with this Agreement, 10) business days following the "Offer") to purchase all date hereof. The obligations 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 Sub to accept for payment and to pay for any Shares validly tendered in and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I III hereto. Offeror Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right in its sole discretion to waive any of such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)conditions, to increase the price per Share payable in the Offer, to extend the Offer Price and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writingSub shall not, Offeror will and Parent shall cause Sub not (i) to, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) Price or change the form of consideration payable in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer Offer, waive or change the Minimum Condition (vii) as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer Offer, in a each case in any manner adverse to the holders of the SharesCompany Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after commencement of the Offer or the last extension (as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond any scheduled the initial expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31if, 1998, if at any scheduled (or extended) expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares set forth in Annex III hereto (including, with respect to other than the Financing Minimum Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waivedwaived for up to two periods of not more than ten (10) business days per extension, until such time as such conditions are satisfied or waived and (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "“SEC") ”), or the staff thereof thereof, applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject In addition to the terms foregoing and conditions of the Offer and this Agreementexcluded from any such limitations, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance Sub also may provide a “subsequent offering period” in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject to .
(b) On the terms and conditions date of commencement of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable federal securities laws provisions of the Exchange Act. Parent and any other Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable lawsLaw. ParentParent and Sub, Offeror on the one hand, and the Company each 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 it shall have become false or misleading in any material respectrespect or as otherwise required by Law. Offeror will Parent and Sub further agree to 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 as and to the extent required by applicable federal securities laws and any other applicable lawsLaw. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents Schedule TO and any amendments amendment thereto prior to the filing thereof before it is filed with the SEC; provided that Offeror will attempt , and Parent and Sub shall give due consideration to give all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company with any comments, whether written or oral, that Parent, Sub or their counsel as much may receive from time to time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide expiration or termination of the Company and its counsel with any comments Offeror and its counsel may receive Offer, from the SEC or its staff with respect to the Offer Documents Documents, promptly after upon receipt of such comments, and any written or oral responses thereto, and the receipt thereofCompany shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. In the event that the Offer is terminated The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or withdrawn by Offerorcommunications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto.
(c) Parent shall provide or cause all tendered Shares to be returned provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered Offer and that Sub is obligated to accept for payment pursuant to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer and permitted to accept for payment under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Delaware Corp.), Merger Agreement (Power Medical Interventions, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 hereof and that none of the events set forth in clause (2) of Exhibit A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, (but in no event later than five business days after following the initial public announcement of the Offer, terms of this Agreement) to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender an 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 stockstock of the Company, par value $0.005 .01 per share, of the Company share (the "Shares" or "Common StockSHARES"), at a price of not less than $10.50 5.25 per Share, net to the seller in cashcash (the "OFFER"). For purposes Subject to the satisfaction of the Offer Conditions (as defined below) and the terms and conditions of this Article IAgreement, Sub shall, and Parent shall cause Sub to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the party which makes the Offer, whether Parent or Sub, shall be referred to Offer as the "Offeror." soon as practicable under applicable law. The obligation of Offeror Sub to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer pursuant thereto shall be subject to only to those conditions set forth in Exhibit A hereto (i) the condition that there shall "OFFER CONDITIONS"), which may be validly tendered in accordance with the terms asserted by Parent or Sub regardless of the Offer prior circumstances giving rise to any such condition, or (except as set forth below with respect to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned Minimum Condition (as defined in Exhibit A)) waived by Parent or Sub, represents in whole or in part, at least ninety (90%) percent any time and from time to time in their sole discretion. The Company agrees that no Shares held by the Company or any of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing its Subsidiaries (as defined in Section 4.2(d9.11 hereof) of this Agreement) in an amount sufficient will be tendered to consummate the transactions contemplated hereby Sub pursuant to the terms Offer. Sub will not, without the prior written consent of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum ConditionCompany, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease or change the price per Share form of the consideration payable in the Offer, (ii) decrease the maximum number of Shares sought pursuant to be purchased the Offer (except as otherwise set forth in the OfferSection 1.01(c) hereof), (iii) impose additional conditions to the Offer in addition to those set forth in Annex I heretoOffer, (iv) change the conditions to the Offer (provided, that Parent or Sub in their sole discretion may waive any material respect adverse of the conditions to the Company, Offer other than the Minimum Condition) or (v) except as provided make any other change in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner which is materially adverse to the holders of the Shares. Notwithstanding If the foregoing, Offeror may, without the consent conditions set forth in Exhibit A are satisfied as of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any Sub may extend the Offer for up to ten business days in the aggregate, and may extend the Offer for a longer period with the prior written consent of the Company or as required by law. If the conditions to Offeror's obligation to accept for paymentset forth in Exhibit A are not satisfied or, and pay for, Shares (including, with respect to the Financing Conditionextent permitted by this Agreement, waived by Parent or Sub as of 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 written request of the Company, Sub will extend the Offer from time to time until the earlier of the consummation of the sale of Offer or forty business days from the Senior Notes date hereof (as defined in Section 4.2(d)) provided, that Sub shall not be satisfied or waived, until obligated to make any such time as extension if (i) it reasonably determines that all such conditions are not likely to be satisfied by such date or waived and (ii) extend it shall then have the Offer for any period required by any ruleright to terminate this Agreement, regulationpursuant to its terms).
(b) On the date of commencement of the Offer, interpretation Parent and Sub shall file or position of cause to be filed with the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer which will shall contain the offer to purchase and form of the related letter of transmittal and summary advertisement other ancillary Offer documents and instruments pursuant to which the Offer will be made (together collectively with any supplements or amendments thereto and including exhibits thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the their filing thereof with the SEC; provided that Offeror will attempt . Parent and Sub agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company with, and its counsel to consult with the Company regarding, any comments Offeror and its counsel that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. .
(c) In the event that the Minimum Condition is not satisfied on any scheduled expiration date of the Offer is terminated or but there shall have been validly tendered and not withdrawn by Offeroras of such expiration date a majority of the outstanding Shares on a fully diluted basis, Parent and Sub shall cause all tendered either (i) extend the Offer in accordance with, and subject to, the last sentence of Section 1.01(a) hereof for a period or periods not to exceed, in the aggregate, ten business days or (ii)(A) amend the Offer to reduce the number of Shares to be returned sought pursuant to the registered holders Offer, and the number of Shares needed to satisfy the Minimum Condition, to that number of Shares which, when added to the Shares then owned directly or indirectly by Sub, would equal forty-nine and nine-tenths percent (49.9%) of the Shares represented by then outstanding (the certificate or certificates surrendered "REVISED MINIMUM NUMBER"), (B) extend the Offer for a period of not less than ten business days following the public announcement of such amendment to the Exchange Agent Offer (the Offer, as defined in Section 3.3 so amended, being sometimes referred to as the "49.9% OFFER") and (C) if, at the expiration of this Agreement)such extension, a greater number of Shares is tendered into the 49.9% Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares.
Appears in 3 contracts
Sources: Merger Agreement (Henkel Acquisition Corp Ii), Merger Agreement (Dep Corp), Merger Agreement (Dep Corp)
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) of Annex I hereto, Parent shall or not, and shall cause Sub not to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 14d-2(a) of the ▇▇▇▇ ▇▇▇) the Offer prior to the date that is 14 days after the date hereof. Provided that this Agreement shall not have been terminated in accordance with Section 10.01, Parent shall cause Sub to, and Sub shall, commence (within the meaning of Rule 14d-2(a) of the ▇▇▇▇ ▇▇▇) the Offer as promptly as practicable after such date (but in no event later than ten (10) Business Days following such date or such later date as the parties may mutually agree in writing). The Sub shall be obligated to accept for payment and to, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Securities Exchange 1934 Act (relating to Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of 1934the Offer), as amended (pay for any Shares validly tendered and not withdrawn prior to the "Exchange Act")) a tender offer expiration of the Offer (as amended from time to time it may be extended 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 subject 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 shall be validly tendered (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichthat, together with any the Shares then beneficially owned by Parent or Suband its Affiliates, represents at least ninety (90%) percent a majority of the total number of Shares then outstanding on a fully-diluted basis Fully Diluted Basis (the "“Minimum Condition"), (ii) the 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 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) to the other conditions set forth in Annex I hereto(together with the Minimum Condition, the “Offer Conditions”) and to no other conditions. Offeror Subject to the prior satisfaction or waiver (except for the Minimum Condition) of the Offer Conditions, promptly after the later of (i) the earliest date as of which Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Sub, Sub shall (and Parent shall cause Sub to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) in compliance with Rule 14e-1(c) of the 1934 Act for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Sub (and of Parent to cause Sub) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (except for the Minimum Condition) by Parent or Sub, of each of the Offer Conditions. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(b) Sub expressly reserves the right in its sole discretion to waive any such condition (including except for the Minimum Condition, provided that no such waiver ) any of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer Conditions and to make any other changes in the terms and of or conditions of to the Offer; provided, however, provided that unless -------- ------- previously approved without the prior written consent of the Company (which consent may be granted or withheld by the Company in writing, Offeror will not its sole discretion) (i) decrease no change may be made that changes the price per Share payable form of consideration to be paid, or decreases the Offer Price or the number of Shares sought in the Offer, (ii) decrease the maximum number of Shares to no change may be purchased in the Offer, (iii) impose conditions made that amends or adds to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 Conditions or (vii) amend amends any other term of the Offer Offer, in a each case in any manner that is adverse to the holders shareholders of the SharesCompany, and except for any change or amendment that is required by Law or any waiver of any Offer Condition (other than the Minimum Condition), (iii) the expiration date shall not be extended except as otherwise provided herein, and (iv) Sub shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 10.01.
(c) Unless extended as provided in this Agreement, the Offer shall initially expire at 12:00 midnight, New York City time on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) and Rule 14e-1(a) under the 1934 Act). Notwithstanding the foregoing, Offeror may, without (i) Sub shall (or at the consent request of the Company, (iParent shall cause Sub to) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at the Initial Expiration Time or any scheduled expiration date extension thereof the Offer Conditions shall not have been satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived (except for the Minimum Condition), for successive extension periods of not more than ten (10) Business Days each (except as required by Law) in order to permit the satisfaction of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived Offer Conditions and (ii) Sub shall extend the Offer for any period required by any Law or by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the "“SEC"”) or the staff thereof or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Sub be required to extend the Offer beyond the End Date. The limitations regarding the terms and conditions Following expiration of the Offer, Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act if, as set forth in of the second preceding and expiration of the immediately preceding sentencesOffer, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions all of the Offer and this AgreementConditions have been satisfied or waived, Offeror but there shall accept for payment , and pay for, all Shares not have been validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated number of Shares necessary to permit the Merger to be effected without a meeting of the Company’s shareholders in accordance with the MBCA. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, payment and pay for, pursuant to the Offer as soon promptly as practicable after the expiration of the Offer, including any Subsequent Offering Period, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”). The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder thereof in cash, subject to compliance reduction for any applicable withholding Taxes payable in respect thereof in accordance with Rule 14e-1(cSection 2.07.
(d) under On the Exchange Act. Subject to the terms and conditions date of commencement of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
shall (bi) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer Offer, which will contain the shall include, as exhibits, an offer to purchase and form of the a related letter of transmittal and transmittal, a summary advertisement and other ancillary documents pursuant to which the Offer will be made (collectively, together with any exhibits, amendments or supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The , and (ii) to the extent required by applicable U.S. securities Laws, cause the Offer Documents will to be disseminated to holders of Shares. Each of Parent and Sub agrees that it shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with applicable federal securities laws the 1934 Act and any the rules and regulations thereunder and other applicable lawsLaw. Each of Parent, Offeror Sub and the Company each agree agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will , and Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws Law. The Company shall furnish or otherwise make available to Parent and Sub and their legal counsel all information concerning the Company’s shareholders, including a list, as of the most recent practicable date, of the stockholders of the Company, mailing labels and any available listing or computer files containing the names and addresses of all record and beneficial holders of the Shares, and a list of security positions of Shares held in stock depositories that Parent or Sub may reasonably request in connection with any action contemplated by this Section 1.01(d), including communicating the Offer to the record and beneficial holders of the Shares; provided that, except as required by Law or in connection with steps as are necessary to disseminate the Offer Documents and any other applicable lawsdocuments necessary to consummate the Merger, Parent and Sub shall keep confidential and not disclose such information, as required by the Confidentiality Agreement, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company or destroy all copies of such information then in their possession or control in accordance with the Confidentiality Agreement. The Company and its counsel shall be given an reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt , and Parent and Sub shall give reasonable and good faith consideration to give all reasonable additions, deletions or changes thereto suggested by the Company and its legal counsel as much time prior that Parent reasonably determines to filing be appropriate. Parent and Sub agree to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments, and the receipt thereof. In Company shall have the event that the Offer is terminated or withdrawn by Offerorright to consult with Parent, Sub and their counsel before responding to any such comments, and Parent and Sub shall cause all tendered Shares give reasonable and good faith consideration to each response to those views and comments of the Company and its legal counsel related thereto that Parent reasonably determines to be returned appropriate. Each of Parent and Sub shall respond promptly to any comments of the SEC or its staff with respect to the registered holders Offer Documents or the Offer.
(e) Parent shall provide or cause to be provided to Sub as promptly as practicable following the expiration of the Offer and any Subsequent Offering Period, as applicable, all funds necessary to pay for those Shares represented by the certificate or certificates surrendered that have been validly tendered and not withdrawn pursuant to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereof, but in no event later than five the fifth business days day after the initial public announcement of the Offerexecution of this Agreement, Parent shall cause Acquisition Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), and Acquisition Sub shall commence, an offer (as amended from time to time or supplemented in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 11.70 per Series A Preferred Share, $16.00 per Series B Preferred Share and $12.00 per Common Share net to the seller in cash. For purposes of this Article Icash (such prices, the party which makes or such higher prices per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to as the "Offeror." Offer Prices"). The obligation of Offeror Acquisition Sub, and of Parent to cause Acquisition Sub, to consummate the Offer, to accept for payment and to pay for any Shares tendered in the Offer shall be subject to only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I hereto. Offeror expressly reserves the right A hereto (any of which may be waived by Acquisition Sub in its sole discretion to waive any such condition (including the Minimum Condition, discretion; provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror maythat, without the consent of the Company, (i) extend Acquisition Sub shall not waive the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes Minimum Tender Condition (as defined in Section 4.2(dAnnex A)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer).
(b) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Acquisition Sub shall file with the SEC Securities and Exchange Commission (the "SEC") with respect to the Offer a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1"), which will comply in all material respects with respect to the Offer which provisions of applicable federal securities laws and will contain the offer to purchase relating to the Offer (the "Offer to Purchase") and form forms of the related letter letters of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto and including exhibits thereto, are referred to herein collectively as the "Offer Documents"). The Offer Documents Parent will comply in all material respects with applicable federal securities laws deliver copies of the proposed forms of the Schedule 14D-1 and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and (as well as any change thereto) to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary Company within a reasonable time prior to cause the commencement of the Offer Documents as so corrected 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 federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to for prompt review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give by the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstancescounsel. Offeror Parent will provide the Company and its counsel with in writing any comments Offeror and its that Acquisition Sub, Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In Parent and Acquisition Sub represent that the event that Schedule 14D-1 and the Offer Documents (including any amendments or supplements thereto) (i) shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder and (ii) shall not, in the case of the Schedule 14D-1 at the time filed with the SEC and at the time the Offer is terminated consummated and in the case of the Offer Documents when first published, sent or withdrawn by Offerorgiven to the stockholders of the Company and at the time the Offer is consummated, 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 are made, not misleading; provided, however, that Parent and Acquisition Sub make no covenant, representation or warranty as to any of the information relating to and supplied by the Company in writing specifically for inclusion in the Schedule 14D-1 or the Offer Documents (including any amendments or supplements thereto). Parent and Acquisition Sub shall promptly correct any information in the Schedule 14D-1 or the Offer Documents that shall have become false or misleading in any material respect and take all steps necessary to cause all tendered Shares such Schedule 14D-1 or Offer Documents as so corrected to be returned filed with the SEC and disseminated to the registered stockholders of the Company, as and to the extent required by applicable law. Parent and Acquisition Sub will provide copies of any amendments or supplements to the Offer Documents or the Schedule 14D-1 prior to any filing of such amendments or supplements with the SEC in order to provide the Company and its counsel with a reasonable opportunity to review and comment.
(c) Each of Parent and Acquisition Sub expressly reserves the right to modify the terms of the Offer, except that neither Parent nor Acquisition Sub shall, without the prior written consent of the Company, decrease the consideration payable in the Offer, change the form of consideration payable in the Offer, decrease the number of Shares sought pursuant to the Offer, change or modify the conditions to the Offer in a manner adverse to the Company or holders of the Shares represented by the certificate or certificates surrendered Shares, impose additional conditions to the Exchange Agent Offer, waive the Minimum Tender Condition, or amend any term of the Offer in any manner adverse to the Company or holders of Shares. Notwithstanding the foregoing, Acquisition Sub, without the consent of the Company, (i) shall extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Acquisition Sub's obligation to accept for payment and pay for Shares shall not have been satisfied, until such time as defined such condition is satisfied or waived, if such condition may in Section 3.3 the reasonable judgment of this AgreementAcquisition Sub be satisfied in a time period reasonable for such satisfaction, (ii) may, if any such condition is not waived, extend the Offer until such condition is waived, (iii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (iv) may extend the Offer on one or more occasions for an aggregate period of not more than five business days if the Minimum Tender Condition has been satisfied and there has theretofore been validly tendered and not withdrawn Shares representing at least 70% but less than 90% of each class of the outstanding Shares (on a fully diluted basis).
(d) Parent will provide or cause to be provided to Acquisition Sub on a timely basis the funds necessary to accept for payment, and pay for, Shares that Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Talley Manufacturing & Technology Inc), Merger Agreement (Score Acquisition Corp), Agreement and Plan of Merger (Talley Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have --------- been terminated in accordance with Section 8.01 hereof and none of the events set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Parent shall or shall cause Sub to, commence the Offer as promptly as reasonably practicable following after the date hereof, but in no event later than five business days after the initial public announcement of the OfferSeptember 12, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 cash1995. 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 Parent to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there at least 2,986,004 Shares (or such greater number of Shares as equals 75% of the Shares then outstanding) shall be have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 Tender Condition") and (iii) shall also be subject to the satisfaction of the other conditions set forth in Annex I A hereto. Offeror Subject to the terms and conditions of the Offer (including the Minimum Tender Condition), Parent shall pay for Shares which have been validly tendered and not withdrawn pursuant to the Offer as promptly as reasonably practicable after expiration of the Offer. Parent expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and or to make any other changes in the terms and conditions of the Offer; providedprovided that, however, that unless -------- ------- previously approved by the Company Board in writing, Offeror no change will not (i) decrease be made that decreases 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change changes the form of consideration payable in the Offer Offer, adds additional conditions to the Offer, decreases the number of Shares being tendered for in the Offer, or (vii) amend makes any other term change in the terms and conditions of the Offer in a manner which is inconsistent with the third sentence of this Section 1.01(a) or which is otherwise materially adverse to the holders of the Shares. Notwithstanding It is agreed that the foregoingconditions set forth in Annex A hereto are for the benefit of Parent and may be asserted by Parent or, Offeror maysubject to the preceding sentence, without may be waived by Parent, in whole or in part at any time and from time to time, in its sole discretion. The Per Share Amount, subject to applicable withholding taxes, shall be paid net to the consent seller in cash, upon the terms and subject to the conditions of the Company, Offer.
(ib) extend As soon as reasonably practicable on the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following of commencement of 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, Parent and pay for, Shares (including, Acquisition shall file with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.)
(bi) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with any amendments or supplements thereto, the "Schedule 14D-1") with respect to the Offer which will and (ii) if required, a Rule 13E-3 Transaction Statement (the "Schedule 13E-3") with respect to the execution and delivery of the Stockholders Option Agreement and the Offer. The Schedule 14D-1 shall contain the or shall incorporate by reference an offer to purchase and a form of the related letter of transmittal and any related summary advertisement (together with any all supplements or amendments thereto and including exhibits theretothe Schedule 14D-1, the "Offer Documents"). The Offer Documents and Schedule 13E-3 will 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 other applicable lawsuntrue 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 Acquisition with respect to information supplied by the Company for inclusion in the Offer Documents or Schedule 13E-3. Parent, Offeror Acquisition and the Company each agree agrees promptly to promptly correct any information provided by it for use in the Offer Documents and Schedule 13E-3 if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and Parent and Acquisition each further agrees to take all steps necessary to cause the Offer Documents and Schedule 13E-3 as so corrected 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 federal securities laws and any other applicable laws. The Company Parent and its counsel shall be given an opportunity Acquisition agree to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with in writing any comments Offeror and its Parent, Acquisition or their counsel may receive from the SEC or its staff Staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments.
(c) The Company shall prepare and file with the event that SEC, subject to the Offer is terminated prior approval of Acquisition (which approval shall not be unreasonably withheld), if necessary, as soon as practicable after the expiration of the Offer, a proxy or withdrawn information statement (the "Proxy Statement") and such other documents relating to the Merger as required by Offerorthe Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder, and the Company shall prepare or shall assist Parent and Sub Acquisition in preparing, as the case may be, any other filings required under the Exchange Act, the Securities Act of 1933, as amended (the "Securities Act"), or any other federal or state securities laws relating to the Offer, the Merger and the transactions contemplated herein (the "Other Filings"). The Company shall cause all tendered Shares obtain and furnish the information required to be returned included in the Proxy Statement and shall, subject to the registered holders prior approval of the Shares represented Acquisition (which approval shall not be unreasonably withheld), respond promptly to any comments made by the certificate or certificates surrendered SEC with respect to the Exchange Agent (as defined in Section 3.3 of this Agreement)Proxy Statement and cause the Proxy Statement to be mailed to the Company's stockholders at the earliest reasonably practicable date.
Appears in 3 contracts
Sources: Merger Agreement (Marmon Holdings Inc), Merger Agreement (Tie Acquisition Co), Merger Agreement (Pritzker Family Philanthropic Fund)
The Offer. (a) Provided that nothing this Agreement shall not have been --------- terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto (other than the events set forth in clause (g) thereof) shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tobe continuing, as promptly as practicable following the date hereof, (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender an offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock, par value $0.005 .01 per shareshare (each a "SHARE" and, collectively, the "SHARES" or the "COMPANY COMMON STOCK"), of the Company (the "Shares" or "Common Stock")Company, at a price of not less than $10.50 55.50 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether 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 SubMerger Sub without the consent of the Company), shall be referred accept for payment and pay for Shares tendered as soon as it is legally permitted to as the "Offeror." do so under applicable law. The obligation obligations of Offeror Merger Sub to accept for payment and to pay for any and all Shares validly tendered in on or before the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a before the expiration of the Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Merger Sub, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the 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 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 ConditionMINIMUM CONDITION") and (iiiii) the other conditions set forth in Annex I hereto. Offeror expressly reserves A hereto (the right in its sole discretion to waive any such condition (including "ADDITIONAL CONDITIONS" and, together with the Minimum Condition, provided that no such waiver the "OFFER CONDITIONS"). The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") containing the terms set forth in this Agreement and the Offer Conditions. Merger Sub shall not amend or waive the Minimum Condition and shall not decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) Price or decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offersought, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to or amend any other term or condition of the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesShares or, except as provided in the next two sentences, extend the expiration date of the Offer without the prior written consent of the Company. Notwithstanding the foregoing, Offeror Merger Sub may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being on one or more occasions for an aggregate period of not more than 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998days, if at any the scheduled or extended expiration date of the Offer, any the Minimum Condition shall not be satisfied, (ii) extend the Offer from time to time until the earlier to occur of (x) the conditions to Offeror's obligation to accept for paymentsatisfaction or waiver of all Offer Conditions or (y) August 31, and pay for1998; provided, Shares (includinghowever, with respect to that notwithstanding the Financing Conditionforegoing, if all Offer Conditions -------- ------- other than the consummation of the sale of the Senior Notes HSR Condition (as defined in Section 4.2(dAnnex 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, until such time as such conditions are satisfied or waived and (iiiii) 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 OfferOffer 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 that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares on a fully diluted basis; provided, however, that if the Offer 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. The limitations regarding Notwithstanding the terms foregoing, if requested by the Company, Merger Sub shall, and conditions 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, as set forth in 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 second preceding Offer Price may be increased and the immediately preceding sentences, shall not Offer may be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject extended to the terms and conditions extent required by law in connection with such increase, in each case without the consent of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany.
(b) As soon as practicable on the date of the commencement of the OfferOffer is commenced, Offeror Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 14D- 1 with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "SCHEDULE 14D-1"). The Schedule 14D-1 will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents will 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 other 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 Merger Sub with respect to information supplied by the Company or any of its stockholders in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent and Merger Sub further agrees to 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 federal securities laws. ParentEach of Parent and Merger Sub, Offeror on the one hand, and the Company each agree Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will , and Merger Sub further agrees to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof initial Schedule 14D-1 before it is filed with the SEC; provided that Offeror will attempt . In addition, Parent and Merger Sub agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel in writing with any comments Offeror and its or other communications that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments or other communications.
(c) Parent shall provide or cause to be provided to Merger Sub all of the event funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer is terminated or withdrawn by OfferorOffer.
(d) Upon the consummation of the Offer, Parent and Sub shall cause all tendered Shares agrees to be returned make a loan to the registered Company, on commercially reasonable terms, in an amount sufficient for the Company to make payments to holders of the Shares represented Company Stock Options as set forth in Section 2.4 hereof, or, if such amount cannot be borrowed by the certificate or certificates surrendered Company for any reason, to contribute such amount to the Exchange Agent (as defined in Section 3.3 of this Agreement)Company.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Armstrong World Industries Inc), Merger Agreement (Armstrong World Industries Inc), Merger Agreement (Triangle Pacific Corp)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as reasonably practicable following after the date hereofpublic announcement of the terms of this Agreement, but in no event later than five business days one week after the initial public announcement of the Offerdate hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for all of the issued and outstanding shares of common stock, par value $0.005 .01 per share, of the Company (individually a "Share" and collectively, the "Shares" or "Common Stock"), ) at a price for each Share of not less than $10.50 per Share16.00, 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 cash (the "Offeror." Offer Price"). The obligation of Offeror Acquisition to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms at least two-thirds of the Offer prior to the expiration date of the Offer and not withdrawn Shares on a number of Shares whichfully- diluted basis, together with any the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or Sub, represents at least ninety (90%any of its subsidiaries) percent of the Shares outstanding on a fully-diluted basis be validly tendered (the "Minimum Condition"), and (ii) the 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 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 set forth in Annex I hereto. Offeror Acquisition expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share payable or the number of Shares sought in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I heretoI, (iv) change extends the conditions to expiration date of the Offer in any material respect adverse to beyond the Company, initial expiration date of the Offer (v) except as provided in the next sentence(b), extend the Offer, (vibelow) change the form of consideration payable in the Offer or (vii) amend makes any other term of the Offer in a manner change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Offeror Acquisition may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation rule or position regulation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms Offer and conditions (ii) if more than 80% but less than 90% of the Offer, as set forth in the second preceding and the immediately preceding sentences, outstanding Shares shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares have been validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offerscheduled or extended expiration date, subject to compliance with Rule 14e-1(cextend 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) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerthis sentence.
(bc) As soon as practicable on the date of the commencement of the OfferOffer is commenced, Offeror Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer which will contain the offer to purchase Purchase (or portions thereof) and form forms of the related letter of transmittal and summary advertisement advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together with any supplements or amendments thereto and including exhibits thereto, constitute the "Offer Documents"). The Offer Documents will ) to comply in all material respects with applicable federal securities laws the Exchange Act and any the rules and regulations thereunder and other applicable lawsApplicable Laws. Each of Parent, Offeror Acquisition and the Company each agree agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will , and Parent and Acquisition further agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt . Parent and Acquisition agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide in writing the Company and its counsel with any comments Offeror and its Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 3 contracts
Sources: Merger Agreement (Policy Management Systems Corp), Merger Agreement (Computer Sciences Corp), Merger Agreement (Computer Sciences Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs and be continuing (a) through (i) of Annex I heretoand shall not have been waived by Purchaser or Merger Sub), Parent Merger Sub shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the "rules and regulations promulgated thereunder, the “Exchange Act"”)) a tender offer the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (as amended 5) business days from time to time in accordance with the date of this Agreement, and the "Offer"Offer shall remain open at least twenty (20) to purchase all business days (as defined in Rule 14d-1(g)(3) of the issued and outstanding shares of common stock, par value $0.005 per share, Exchange Act) from commencement of the Company Offer (the "Shares" or "Common Stock"“Initial Expiration Date”), 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 Merger Sub to accept for payment and to pay for any Shares validly tendered in and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) shall be subject only to the satisfaction or waiver by Purchaser or Merger Sub of the following conditions: (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a that number of Shares whichshares of Common Stock that represents a majority of all outstanding shares of Common Stock that are not Beneficially Owned by Purchaser, together with Merger Sub or any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis Purchaser Affiliate (the "“Minimum Condition"”), ; and (ii) the 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 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 set forth in Annex I A hereto. Offeror For purposes of this Agreement, the term “Purchaser Affiliate” shall mean any person or entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with Purchaser or its officers or directors and the term “Beneficially Owned or “Beneficially Own” shall include but is not limited to shares of Common Stock that any person or entity, directly or indirectly, through any written or oral agreement, arrangement, relationship, understanding or otherwise with Purchaser or a Purchaser Affiliate, has or shares the power to vote, direct the power to vote, or direct the voting of, or has or shares the power to dispose of, or direct the disposition of, and includes, but is not limited to, the currently exercisable right to acquire Common Stock through the exercise of options, warrants, or rights on the conversion of convertible securities into shares of Common Stock; provided that the term Beneficially Owned for purposes of this Section 1.01(a) shall not include shares of Common Stock that are subject to the rights of the Purchaser and Merger Sub pursuant to the Shareholders Agreement or the Stock Option Agreement. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right in its sole discretion to waive any of such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)conditions, to increase the price per Share payable in the Offer, to extend the Offer Price and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writingMerger Sub shall not, Offeror will and Purchaser shall cause Merger Sub not (i) to, decrease the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, extend the Offer beyond the Initial Expiration Date except as set forth below, purchase any Shares pursuant to the Offer or (vii) otherwise unless the shares purchased equal or exceed that number of shares of Common Stock that satisfy the Minimum Condition or amend any other term condition of the Offer in a any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror Merger Sub may, without the consent of the Company, prior to the termination of this Agreement (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31if, 1998, if at any scheduled expiration date of the Offer, Offer any of the conditions to Offeror's Merger Sub’s obligation to accept Shares for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) payment shall not be satisfied or waivedwaived (including without limitation the Minimum Condition), until extend the Offer beyond the then applicable expiration date thereof for a time period reasonably necessary to permit such time as such conditions are satisfied condition to be satisfied, or waived and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "“SEC") ”), or the staff thereof thereof, applicable to the Offer. The limitations regarding the terms and conditions Offer or (iii) if, at any scheduled expiration of the Offer, as set forth in the second preceding and the immediately preceding sentences, number of shares of Common Stock that shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares have been validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for paymentsatisfies the Minimum Condition but represents less than 90% of the shares of Common Stock outstanding, and pay for, pursuant to extend the Offer as soon as practicable after expiration (one or more times) for an aggregate additional period of not more than 20 business days. Merger Sub may also, without the consent of the OfferCompany but only after the Minimum Condition is satisfied, subject to compliance extend the Offer in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject In addition, the Offer Price may be increased and the Offer may be extended to the terms and conditions extent required by law in connection with such increase, without the consent of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany.
(b) As soon promptly as practicable on the date of the commencement of the Offer, Offeror Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer which will Offer. The Schedule TO shall contain the or incorporate by reference an offer to purchase (the “Offer to Purchase”) and form forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any all amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Purchaser and Merger Sub shall cause the Offer Documents will comply in all material respects with to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws and any other applicable laws. ParentPurchaser and Merger Sub, Offeror on the one hand, and the Company each agree to Company, on the other hand, will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror , and Merger Sub will 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 the Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on upon the Offer Documents and any amendments thereto prior to the filing thereof Schedule TO before it is filed with the SEC; provided that Offeror will attempt . In addition, Purchaser and Merger Sub agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its comments, whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments and to consult with the event that Company and its counsel prior to responding to any such comments.
(c) Purchaser and Merger Sub will file with the Commissioner of Commerce of the State of Minnesota and deliver to the Company any registration statement relating to the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares required to be returned filed pursuant to Chapter 80B of the Minnesota Statutes and will disseminate to the registered holders shareholders of the Shares represented by Company the certificate or certificates surrendered to the Exchange Agent (as defined information specified in Section 3.3 80B.03 of this Agreement)the Minnesota Statutes.
Appears in 3 contracts
Sources: Merger Agreement (Sl Industries Inc), Merger Agreement (Sl Industries Inc), Merger Agreement (Ault Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article Eight hereof and none of the conditions events set forth in paragraphs (a) through (i) of Annex I hereto, Parent hereto (the “Tender Offer Conditions”) shall or shall cause Sub tohave occurred, as promptly as practicable following reasonably practicable, and in any event within ten (10) calendar days, Parent shall cause the date hereof, but in no event later than five business days after the initial public announcement of the Offer, Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”)) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all outstanding Shares at the Offer Price, shall, upon commencement of the issued and outstanding shares of common stock, par value $0.005 per share, of Offer but after affording the Company a reasonable opportunity to review and comment thereon, file Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "Shares" or "Common Stock"“SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), at a price of not less than $10.50 per Share, net and shall use its reasonable best efforts to the seller in cash. For purposes of this Article I, the party which makes consummate the Offer, whether Parent or Sub, shall be referred subject to as the "Offeror." terms and conditions thereof. The obligation of Offeror the Purchaser to accept for payment and to or pay for any Shares tendered in pursuant to the Offer shall will be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves .
(b) Without the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend Purchaser shall not decrease the Offer, (vi) Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the Common Shares. Notwithstanding The Offer shall remain open until the foregoing, Offeror may, without date that is twenty (20) Business Days (as such term is defined in Rule 14d-1(c)(6) under the consent Exchange Act) after the commencement of the CompanyOffer (the “Expiration Date”), (i) unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that the Purchaser may provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-ll under the Exchange Act. If at any Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by the Purchaser, the Purchaser may extend the Offer beyond any scheduled expiration date (from time to time; provided, however, that, on the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, (i) if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Merger shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations, (ii) if any of the conditions to Offeror's obligation to accept for payment, set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and pay for, Shares (including, with respect to the Financing Conditionbe continuing, the consummation Purchaser shall extend the Offer from time to time until the earlier of (A) five (5) Business Days after the time such condition or conditions shall no longer exist or (B) such time at which the matters described in such paragraphs (a) or (b) shall have become final and nonappealable; or (iii) if all of the sale Tender Offer Conditions are satisfied and more than 50% but less than 90% of the Senior Notes outstanding Common Shares on a fully diluted basis (excluding Options (as defined herein) which are not exercisable for 60 days) have been validly tendered and not withdrawn in Section 4.2(d)) the Offer, the Purchaser shall not be satisfied or waivedhave the right, until such time as such conditions are satisfied or waived and (ii) in its sole discretion, to extend the Offer for any period required by any rule, regulation, interpretation or position from time to time up to a maximum of the Securities and Exchange Commission ten (the "SEC"10) or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth additional Business Days in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreementaggregate. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Offeror shall the Purchaser will accept for payment , and pay for, for all Shares validly tendered and not validly withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after such expiration date of the Offer, subject to compliance with Rule 14e-1(c) under . Without the Exchange Act. Subject to the terms and conditions prior written consent of the OfferCompany, Parent and Sub will each use its reasonable best efforts the Purchaser shall not accept for payment or pay for any Shares in the Offer if, as a result, Purchaser would acquire less than the number of Shares necessary to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate satisfy the OfferMinimum Condition (as defined in Annex I hereto).
(bc) As soon as practicable on Parent and the date of Purchaser represent that the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will 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 other applicable lawsuntrue 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 made 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 in writing for inclusion in the Offer Documents. Parent, Offeror Each of Parent and the Company each agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
The Offer. (aA) Provided that nothing shall have occurred that would result in a failure An "Offer'' for the purposes of this Schedule is an offer to satisfy any of sell the conditions set forth in paragraphs Reversion to the Tenant free from encumbrances (aother than this Lease and the Title Matters) through and which:
(i) is unconditional;
(ii) is made irrevocably by the Landlord unless and until rejected or treated as rejected by the Tenant pursuant to paragraph 7.3(C) of Annex this Part I hereto, Parent shall or shall cause Sub to, as promptly as practicable following of this Schedule;
(iii) is made in the date hereof, but form set out in no event later than five business days after Part II of this Schedule;
(iv) is submitted by the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 Landlord to the seller Tenant in cash. For purposes duplicate, both parts of this Article I, which are signed by the party which makes Landlord;
(v) specifies 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 Consideration;
(i) specifies whether any landlord's fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or deemed receipt of an Offer), the condition that there Tenant shall be validly tendered entitled (but not obliged) to give notice in accordance with writing to the terms of Landlord stating either:
(i) that it rejects the Offer prior to in which event the expiration date provisions of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%paragraph 7.3(C) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), will apply; or
(ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 it wishes to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(bC) As soon as practicable on In the date event (i) the Tenant declines to accept the Offer pursuant to paragraph 7.3(B)(i) or (ii) at the expiry of the commencement 25 Business Days' period specified in paragraph 7.3(B) the Tenant has not notified the Landlord that it wishes to acquire the Reversion and the Offer is thereby treated as rejected by the Tenant or (iii) the Tenant has not within 5 (five) Business Days after notifying the Landlord pursuant to paragraph 7.3(B)(ii) that it wishes to accept the Offer then accepted the Offer pursuant to paragraph 7.4, the Landlord may dispose of the Reversion to a third party for a consideration determined by the Landlord and which may be less than the Consideration specified in the Offer provided that:
(i) the Landlord shall keep the Tenant fully informed of its negotiations with third parties in respect of any transfer of the Reversion, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may be redacted by the Landlord if the Landlord reasonably considers it to be necessary, save that the key terms including the consideration must be disclosed to the Tenant);
(ii) the third party transaction must be bona fide and on arm's length terms; and
(i) if the proposed disposal to a third party would be for less than the Consideration specified in the Offer, Offeror the Landlord shall file first offer to sell the Reversion to the Tenant for the price which has been agreed with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form proposed purchaser of the related letter of transmittal and summary advertisement Reversion (together with any supplements or amendments thereto and including exhibits thereto, the "Offer DocumentsRevised Offer"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror ) and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel Tenant shall be given an opportunity entitled but not obliged within 10 Business Days of receipt (or deemed receipt), time being of the essence, of the Revised Offer to review and comment on decline the Revised Offer Documents and any amendments thereto prior or to accept the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereofRevised Offer. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares Tenant fails to be returned respond to the registered holders Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Tenant. The Revised Offer shall comply in all respects with the provisions of paragraph 7.3(A) subject to any necessary revisions to the form set out in Part II of this Schedule and the Consideration for the purposes of the Shares represented by Revised Offer shall be the certificate consideration for which the Landlord is intending to dispose of the Reversion whether monetary or certificates surrendered not monetary and the terms of this paragraph (C) apply to the Exchange Agent (Revised Offer as defined if it were an Offer, save in Section 3.3 respect of this Agreement)the time in which the Tenant must notify the Landlord of whether it intends to accept.
Appears in 3 contracts
Sources: Lease (Indivior PLC), Lease Agreement (Indivior PLC), Lease (Indivior PLC)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date --------- execution hereof, but in no event later than five business days after the initial Purchaser shall make a public announcement of the Offer, commence (within the meaning of pursuant to Rule 14d-2 14d-2(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, promptly thereafter, the Purchaser shall commence or shall cause a wholly-owned subsidiary to commence (within the meaning of Rule 14d-2 under the Exchange Act) a tender an 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 0.01 Netherlands Guilders per share, of the Company (referred to herein as either the "Shares" or "Company Common Stock"), at a price of not less than ) for (i) $10.50 30.00 per Share, net of fees and commissions, to the seller in cash. For purposes cash (the "Offer Price"), subject to there being, at the expiration of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred validly tendered and not withdrawn that number of Shares which represent at least ninety percent (90%) of the capital stock entitled to as vote and then outstanding (the "Offeror." Minimum Condition") and to the other conditions set forth in Section 6.1 hereof. The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as practicable after it is permitted to do so under the Exchange Act (the "Closing Date"). The obligations of the Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 shall be subject only to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent Minimum Condition 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 set forth in Annex I heretoSection 6.1 hereof. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right in its sole discretion "Offer to waive any such condition (including the Minimum Condition, provided that no such waiver of Purchase") containing the Minimum Condition shall decrease and the Minimum Condition other conditions set forth in Section 6.1 hereof. Without the written consent of the Company (such consent to less than sixty-six and two-thirds (66 2/3%) percentbe authorized by the Board of Directors of the Company or a duly authorized committee thereof), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will Purchaser shall not (i) decrease the price per Share Offer Price or change the form of consideration payable in pursuant to the OfferOffer (other than as set forth below), (ii) decrease the maximum number of Shares to be purchased in sought or extend the OfferOffer (other than as set forth below), or (iii) impose any additional conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to or amend any condition of the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares; provided, however, that if on the scheduled expiration date of the Offer (as it may be extended), all conditions to the Offer shall not have been satisfied or waived, the Offer may be extended by the Purchaser from time to time to permit the satisfaction of such conditions until termination of this Agreement, without the consent of the Company, to permit satisfaction of such conditions. Notwithstanding In addition, the foregoing, Offeror Purchaser may, without the consent of the Company, (i) increase the Offer Price and extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period extent required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerlaw.
(b) As soon as practicable on the date of the commencement of Offer is commenced, the Offer, Offeror Purchaser shall file with the SEC United States 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 and including the exhibits thereto, the "Schedule 14D-1") which will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement with respect to the Offer (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Purchaser represents that the Offer Documents will comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder, and all other applicable federal securities laws and, on the date filed with the Commission 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 the Purchaser with respect to information supplied by the Company for inclusion in the Schedule 14D-1. The Purchaser further agrees to take all steps necessary to cause the Offer Documents to be filed with the Commission and to be disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act and other applicable federal securities laws. ParentThe Purchaser, Offeror on the one hand, and the Company each agree Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect. Offeror will , and the Purchaser further agrees to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC Commission and to be disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act or other applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt Commission. In addition, the Purchaser agrees to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with in writing any comments Offeror and the Purchaser or its counsel may receive from time to time from the SEC Commission or its staff with respect to the Offer Documents Schedule 14D-l promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 3 contracts
Sources: Acquisition Agreement (Renaissance Hotel Group N V), Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Marriott International Inc)
The Offer. (a) Provided that nothing (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 that would result in a failure to satisfy any of and be continuing and (iii) the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent Company shall or shall cause Sub tohave complied with its applicable obligations under Section 1.2, as promptly as practicable following after the date hereofeffectiveness of the Form 10, but and in no event later than any event, within five (5) business days after thereafter, the initial public announcement of the Offer, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (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 subject to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares (i) there being validly tendered in the Offer shall be subject only to (iin the aggregate) the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a that number of Shares which, together with any the Shares then beneficially owned by Parent or Subthe Purchaser, represents at least ninety (90%) percent 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"), ”) and (ii) the receipt satisfaction or waiver 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 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 hereto. Offeror expressly reserves I. Subject to the right in its sole discretion to waive any such condition (including prior satisfaction or waiver by the Minimum Condition, provided that no such waiver Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend consummate the Offer and to make any other changes in the accordance with its terms and conditions of accept for exchange, and exchange the OfferOffer 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 unless -------- ------- previously approved 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 Company “Offer to Exchange”) that contains the terms set forth in writingthis Agreement, Offeror will the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not (i) decrease the price per Share Offer Consideration, change the form of consideration payable in the Offer, (ii) decrease Offer or reduce the maximum number of Shares to be purchased in the OfferOffer 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), (iii) impose all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentenceits sole discretion, extend the OfferInitial Expiration Date, for such period as the Purchaser may determine, (viy) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror Purchaser may, without in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the consent of Exchange Act and (z) the CompanyPurchaser may, (i) in its sole discretion, extend the Offer beyond for any scheduled expiration date reason on one or more occasions for an aggregate period of not more than ten (the initial scheduled expiration date being 20 10) business days following commencement of beyond the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled latest expiration date of the OfferOffer that would otherwise be permitted under clause (x) of this sentence if, any on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the conditions to Offeror's obligation to accept for payment, outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and pay for, Shares (including, with respect extend the Offer to the Financing Condition, the consummation of the sale of the Senior Notes (as defined extent required by applicable law in Section 4.2(d)) shall not be satisfied or waived, until connection with such time as such conditions are satisfied or waived increase and (ii) extend the Offer for any period 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 rule, regulation, interpretation scheduled expiration date (as the same may be extended or position required to be extended) without the written consent of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the OfferCompany, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable except in the event that this Agreement is terminated pursuant to Section 8.1(d) of 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement. Subject Agreement is terminated prior to the terms and conditions exchange of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of in the Offer, subject to compliance with Rule 14e-1(c) under the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Act. Subject Agent, acting on behalf of the Purchaser, to return all tendered Shares to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
(b) Notwithstanding anything to the contrary contained in this Article I, no certificates or scrip representing fractional shares of Purchaser Common Stock shall be issued upon the surrender for exchange of the Shares pursuant to the Offer, no dividends or other distributions with respect to the Purchaser Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a shareholder of the Purchaser. In lieu of any such fractional shares, each tendering shareholder who would otherwise be entitled to a fractional share of Purchaser Common Stock (after aggregating all fractional shares of Purchaser Common Stock that otherwise would have been received by such shareholder) shall, upon surrender of his or her Certificate or Certificates, be entitled to receive an amount of cash (without interest) determined by multiplying (i) the closing price of a share of Purchaser Common Stock as reported on the Nasdaq Global Market (the “Nasdaq”) on the Acceptance Date by (ii) the fractional share interest to which such shareholder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(c) As soon as practicable on the date of the commencement of Offer is commenced, the Offer, Offeror Purchaser shall (i) file with the SEC Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) and (ii) file with the SEC a registration statement on Form S-4 to register, under the Securities Act, the offer and sale of the Purchaser Common Stock pursuant to purchase the Offer and the Merger (together with all amendments, supplements and exhibits thereto, the “Registration Statement”). The Registration Statement shall include a preliminary prospectus (the “Prospectus”) containing the information required under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Exchange and a form of the related letter of transmittal and summary advertisement (collectively with the Prospectus, and together with any amendments and supplements or amendments thereto and including exhibits theretoto the Prospectus, the "“Offer Documents"”). The Purchaser shall cause the Offer Documents will comply in all material respects with to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws and any other applicable laws. Parent, Offeror and The Company shall provide the Purchaser with all information concerning the Company each agree and its directors, officers and affiliates as shall be required to promptly correct any information provided by it for use be included in the Offer Documents if and the Registration Statement. The Company and its counsel shall be given a reasonable opportunity to review the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary to cause Registration Statement and the Offer Documents before they are filed with the SEC, and the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Registration Statement or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses, and the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. No amendment or supplement to the Offer Documents shall be made by the Purchaser without providing the Company and its counsel a reasonable opportunity to review any such amendment or supplement, and the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(d) The Purchaser shall use its reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof with the SEC and to keep the Registration Statement effective as long as is necessary to complete the Offer and the Merger. Notwithstanding any other provision herein to the contrary, no amendment or supplement to the Registration Statement will be made by the Purchaser without the approval of the Company, which will not be unreasonably withheld, conditioned or delayed; provided, that with respect to documents filed by the Purchaser which are incorporated by reference in the Registration Statement, this right of approval shall apply only with respect to information relating to this Agreement, the Transactions or the Company or its business, financial condition or results of operations. The Purchaser shall take any action (other than qualifying to do business in any jurisdiction in which it is now not so corrected qualified) reasonably required to be taken under applicable state securities or Blue Sky laws in connection with the issuance of the Purchaser Common Stock in the Offer and the Merger. The Purchaser will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement is declared effective, the issuance of any stop order, the suspension of the qualification of the Purchaser Common Stock issuable in connection with the Offer or the Merger for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Registration Statement. Following the time the Registration Statement is declared effective, the Purchaser shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
(e) If, at any time prior to the Effective Time, the Company or the Purchaser discovers any information relating to either party, or any of their respective affiliates, officers or directors, that should be set forth in an amendment or a supplement to any of the Registration Statement, the Offer Documents or the Schedule 14D-9, as the case may be, so that such documents would not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, the party that discovers that information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws and laws.
(f) The Company agrees that no Shares held by the Company or any other applicable lawsof its Subsidiaries will be tendered to the Purchaser pursuant to the Offer. The Company and its counsel shall be given an opportunity hereby consents to review and comment on the inclusion in the Offer Documents and any amendments thereto prior of the recommendation of the Company Board of Directors referred to in clause (iii) of Section 3.4
(g) Notwithstanding anything herein to the filing thereof with contrary, the SEC; provided that Offeror will attempt to give Purchaser, the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (may withhold the Offer Consideration as defined in Section 3.3 it reasonably deems necessary to satisfy its withholding obligations under applicable law, and the withholding of this Agreement)any such Offer Consideration for such purpose shall be treated as the payment thereof to the Person from whom such amount was withheld for purposes of determining whether such Person received amounts to which such Person is entitled hereunder.
Appears in 3 contracts
Sources: Merger Agreement (New 360), Merger Agreement (Point 360), Merger Agreement (DG FastChannel, Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 hereof and none of the events set forth in Annex I hereto shall have occurred that would result in and be existing, Purchaser or a failure to satisfy any direct or indirect subsidiary of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent as designated by Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act")) a tender offer (the Offer as amended from time to time in accordance with promptly as reasonably practicable following the execution of this Agreement, but in any event within 15 business days following 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 date of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." Agreement. The obligation of Offeror Parent to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date satisfaction of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I hereto. Offeror I. Parent expressly reserves the right in its sole discretion from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Per Share payable in the OfferAmount, to extend the Offer and or to make any other changes in the terms and conditions of the Offer; provided. The Per Share Amount shall be net to the seller in cash, however, subject to reduction only for any applicable Federal back-up withholding or stock transfer taxes payable by the seller. The Company agrees that unless -------- ------- previously approved no Shares held by the Company in writingor any of its Subsidiaries (as defined below) will be tendered pursuant to the Offer.
(b) Without the prior written consent of the Company, Offeror will Parent shall not (i) decrease the price per Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offersought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I) or (iv) impose additional conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding Upon the foregoing, Offeror may, without terms and subject to the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date conditions of the Offer, any Purchaser will accept for payment and purchase, as soon as permitted under the terms of the conditions to Offeror's obligation to accept for paymentOffer, all Shares validly tendered and pay for, Shares (including, with respect not withdrawn prior to the Financing Condition, the consummation expiration of the sale Offer.
(c) The Offer shall be made by means of an offer to purchase (the Senior Notes ("Offer to Purchase") having only the conditions set forth in Annex I hereto. As soon as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend practicable on the date the Offer for any period required by any ruleis commenced, regulation, interpretation or position of Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule TO") and, if necessary, jointly file with Target a Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer which that will comply in all material respects with the provisions of all applicable Federal securities laws, and will contain (including as an exhibit) or incorporate by reference the offer Offer to purchase Purchase and form forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto and including exhibits thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws Parent and any other applicable laws. Parent, Offeror Purchaser agree promptly to correct the Schedule TO and the Company each agree to promptly correct any information provided by it for use in the Offer Documents and to cooperate with Target to amend the Schedule 13E-3 if and to the extent that it such documents shall have become false or misleading in any material respect. Offeror will respect (and the Company, with respect to written information supplied by it specifically for use in the Schedule TO, Schedule 13E-3 or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule TO, Schedule 13E-3 or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Schedule TO or Schedule 13E-3, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the any Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt .
(d) The Offer to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchase shall provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders for an initial expiration date of the Shares represented by the certificate or certificates surrendered to the Exchange Agent 20 business days (as defined in Section 3.3 Rule 14d-1 under the Exchange Act) from the date of this Agreementcommencement. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent may, from time to time extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer, but in no event shall such extensions extend beyond the Termination Date (as defined below). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer and (ii) extend the expiration date of the Offer (as it may be extended) for up to ten business days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of Shares that have been validly tendered and not withdrawn, when added to the Shares, if any, beneficially owned by Parent represents less than 90 percent of the then issued and outstanding Shares on a fully diluted basis.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Warburg Pincus Equity Partners Lp), Agreement and Plan of Merger (Hilltopper Holding Corp), Merger Agreement (Centennial Healthcare Corp)
The Offer. (a) (i) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and that none of the events set forth in clause (iii) of Exhibit A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, (but in no event later than five seven (7) business days after following the initial public announcement of the Offer, terms of this Agreement) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender an 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 stockstock of the Company, without par value $0.005 per share, of the Company (the "Shares" or "Common StockSHARES"), at a price (such price, or any higher price as may be paid in the Offer, the "OFFER PRICE") of not less than $10.50 22 per Share, net to the seller in cash. For purposes of cash (such tender offer, as it may be amended and supplemented from time to time as permitted under this Article IAgreement, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." OFFER"). The obligation of Offeror Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer pursuant thereto shall be subject to only to (i) the condition that there shall be validly tendered in accordance with the terms and conditions set forth in this Agreement and to those conditions set forth in Exhibit A hereto (the "OFFER CONDITIONS"), any of which (other than the Offer prior to the Minimum Tender Condition (as defined in Exhibit A)) may be waived by Purchaser in its sole discretion. The initial expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent shall be the twentieth business day following the commencement of the Shares outstanding on a fully-diluted basis Offer (determined in accordance with Rule 14d-1(e)(6) under the "Minimum Condition"Exchange Act), (ii) . Purchaser expressly reserves the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient right to consummate the transactions contemplated hereby pursuant to modify the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and Offer, except that, without 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition Company, Purchaser shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (iA) decrease the price per Share Offer Price or change the form of the consideration payable in the Offer, (iiB) decrease the maximum number of Shares sought pursuant to be purchased in the Offer, (iiiC) impose additional conditions to the Offer in addition to those set forth in Annex I heretoOffer, (ivD) change the conditions to the Offer in or (E) make any material respect adverse to the Company, (v) except as provided other change in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner which is adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Automatic Data Processing Inc), Agreement and Plan of Merger (Cunningham Graphics International Inc), Merger Agreement (Automatic Data Processing Inc)
The Offer. (a) Provided that nothing none of the events set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of or be continuing, Purchaser shall commence the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, Offer as promptly as reasonably practicable following the date hereof, but in no event later than five seven (7) business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 cashdate hereof. 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 Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), ) that at least the number of Shares tendered shall constitute a 50% plus one share of the sum of the number of then outstanding Shares plus all Shares issuable upon the exercise of the Outstanding Options (as of the business day preceding the Initial Expiration Date) and Outstanding Warrants (as of the business day preceding the Initial Expiration Date) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the receipt satisfaction or waiver of cash proceeds each 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 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 set forth in Annex I A hereto. Offeror Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)set forth in Annex A, to increase the price per Per Share payable in the OfferAmount, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by no change may be made which decreases the Company in writingPer Share Amount, Offeror will not (i) decrease changes the price per Share payable in the Offerform of consideration payable, (ii) decrease reduces the maximum number of Shares to be purchased in the Offer, Offer or imposes or modifies (iiiother than to waive) impose conditions to the Offer in addition to those set forth in Annex I A hereto. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Minimum Condition as of the scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer, and the other conditions set forth in Annex A hereto, (iv) change the conditions Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer in 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 (vii) amend any other term soon as practicable after such expiration date of the Offer in a manner adverse (such date, as extended pursuant to this Agreement, the holders of the Shares"Share Acceptance Date"). Notwithstanding the foregoing, Offeror Purchaser shall be entitled to extend the Offer from time to time without the consent of the Company: (i) until no later than January 11, 2002 if at the initial expiration of the Offer, which will be 12:00 midnight eastern standard time on the twentieth business day following commencement of the Offer, as may be extended (the "Initial Expiration Date"), the Minimum Condition is not satisfied, or (ii) until no later than December 31, 2001, if at the Initial Expiration Date, the Minimum Condition is satisfied, but any other condition to the Offer is not satisfied or waived. Purchaser agrees to extend the Offer from time to time until not later than December 31, 2001, if at the then scheduled expiration date, the Minimum Condition has not been satisfied or waived as permitted by this Agreement. Any extension of the Offer pursuant to this Section 2.01 shall not, without the written consent of the Company, exceed the number of days that Purchaser reasonably believes will be necessary so that the Minimum Condition will be satisfied. In addition, Purchaser may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any then scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any ruleapplicable rules, regulationregulations, interpretation interpretations or position positions of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or for any period required by applicable law. If the Initial Expiration Date has occurred, but fewer than 90% of the Shares have been validly tendered and not withdrawn as of the Initial Expiration Date, Purchaser may provide for a subsequent offering period (as contemplated by Rule 14d-11 under the Securities Act of 1934, as amended (the "Exchange Act")) as long as providing for the subsequent offering period does not require the extension of the initial offer period under applicable rules and regulations of the SEC, which subsequent offering period shall not exceed 20 business days. In addition, the Per Share Amount 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 or prior to the dates that Purchaser becomes obligated to accept for payment and pay for Shares pursuant to the Offer, Holdings shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. The limitations regarding Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Notwithstanding the foregoing and subject to the applicable rules of the SEC and the terms and conditions of the Offer, as set forth Purchaser expressly reserves the right to delay payment for Shares in the second preceding and the immediately preceding sentences, order to comply in whole or in part with applicable laws. Any such delay shall not be applicable effected in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act.
(b) Following the execution of this Agreement, the Company shall use its reasonable best efforts to cause all holders (and such holders' spouses) of options to purchase Shares granted under the Company's 1997 Incentive Stock Option Plan and the Company's Directors Non-Qualified Option Plan , each as amended through the date of this Agreement (the "Company Stock Option Plans"), to execute prior to the Initial Expiration Date an Option Relinquishment and Release Agreement (herein so called) in the form attached hereto as Exhibit A. At the Share Acceptance Date, Purchaser shall cause the Paying Agent to pay to such holders who have previously delivered an Option Relinquishment and Release Agreement the cash amount equal to the product of (i) the number of Shares subject to such option (irrespective of whether such option is then exercisable) and (ii) the amount by which the Per Share Amount exceeds the exercise or strike price per Share subject to such option less any required withholding taxes. Subject In the event that an option holder fails to deliver an Option Relinquishment and Release Agreement prior to the Initial Expiration Date, such holder's options (the "Outstanding Options") shall, in accordance with the terms and conditions of the Offergoverning Company Stock Option Plan and the holder's stock option agreement(s), Parent be converted without any action on the part of the holder thereof into the right to receive Merger Consideration upon the exercise of such holder's options in accordance with, and Sub will within the time period prescribed by, the applicable Company Stock Option Plan and the holder's stock option agreement(s). The Purchaser shall pay, or cause the Paying Agent to pay, to each holder of Outstanding Options, the Merger Consideration, less any required withholding taxes, as promptly as practicable after receiving a valid exercise of such options by the holder thereof. To the extent that options to purchase the Company's common stock are exercised by holders prior to the Effective Time, such holders shall receive certificates evidencing the Shares underlying the options and may surrender such certificates to the Paying Agent at the Effective Time for payment in cash as provided in Article III hereof.
(c) Following the execution of this Agreement, the Company shall send to holders of warrants to purchase Shares written notice of the Offer and Merger and such information required by the terms of such warrant. The Company shall send to all such persons a Warrant Relinquishment and Release Agreement (herein so called) in the form attached hereto as Exhibit B and shall use its reasonable best efforts to takecause all holders of warrants (and such holders' spouses) to execute prior to the Initial Expiration Date a Warrant Relinquishment and Release Agreement. At the Share Acceptance Date, Purchaser shall cause the Paying Agent to pay to such holders who have previously delivered a Warrant Relinquishment and Release Agreement the cash amount equal to the product of (i) the number of Shares subject to such warrant and (ii) the amount by which the Per Share Amount exceeds the exercise price per share of Shares subject to such warrant less any required withholding taxes. In the event that a warrant holder fails to deliver a Warrant Relinquishment and Release Agreement prior to the Initial Expiration Date, such holder's warrants (the "Outstanding Warrants") shall, in accordance with the terms and conditions of the Outstanding Warrant be converted without any action on the part of the holder thereof into the right to receive Merger Consideration upon the exercise of such holder's warrants in accordance with the warrant agreement(s). The Purchaser shall pay, or cause the Paying Agent to be takenpay, all actions to each holder of Outstanding Warrants, the Merger Consideration, less any required withholding taxes, as promptly as practicable after receiving a valid exercise of such warrants by the holder thereof. To the extent that warrants to purchase the Shares are exercised by holders prior to the Effective Time, such holders shall receive certificates evidencing the Shares underlying the warrants and may surrender such certificates to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferPaying Agent at the Effective Time for payment in cash as provided in Article III hereof.
(bd) If the payment equal to the Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(e) As soon promptly as reasonably practicable on the date of the commencement of the Offer, Offeror Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer which will Offer. The Schedule TO shall contain the or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and form forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. ParentEach of CRI, Offeror Purchaser and the Company each agree agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will , and CRI and Purchaser further agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The CRI and Purchaser shall give the Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof such documents being filed with the SEC; provided that Offeror will attempt SEC or disseminated to give the Company holders of Shares. CRI and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel with any comments Offeror and its CRI, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments and shall provide the event that Company and its counsel with a reasonable opportunity to participate in the Offer is terminated response of CRI or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares Purchaser to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 3 contracts
Sources: Merger Agreement (Comstock Resources Inc), Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
The Offer. (a) Provided Subject to the provisions of this Agreement and provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date accordance with Article 10 ---------- hereof, but in no event later than five business days after the initial public announcement of the Offeron or before February 1, 2001 Merger Sub shall commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, and the rules and regulations promulgated thereunder), the "Offer") ------------ 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"), Stock at a price of not less than $10.50 2.15 per Shareshare of Common Stock, net to the seller of such shares in cash. For purposes of this Article I, the party which makes without interest (such price or any higher price as may be paid pursuant to the Offer, whether Parent the "Offer Consideration"). Notwithstanding the foregoing, if between the ------------------- date of this Agreement and the closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or Suba different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be referred correspondingly adjusted on a per-share basis to as the "Offeror." reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Offeror Purchaser and Merger Sub to commence the Offer and accept for payment payment, and pay for, any shares of Common Stock tendered pursuant to pay for any Shares tendered in the Offer shall be subject only to the conditions set forth in Exhibit A hereto, which is incorporated herein by reference. Subject to --------- the provisions of this Agreement, the Offer shall expire no later than April 2, 2001 (i) the condition that there shall be validly tendered "Initial Offer Expiration Date"), unless this Agreement is terminated ----------------------------- in accordance with Article 10, in which case the Offer (whether or not ---------- previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Purchaser and Merger Sub expressly reserve the Offer prior right, in their sole discretion, to modify the expiration date terms of the Offer and not withdrawn a number of Shares which, together with to waive any Shares then owned by Parent or Sub, represents at least ninety (90%) percent condition of the Shares outstanding on a fully-diluted basis Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the "Minimum Condition"Condition (as defined in Exhibit A), (ii) reduce the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares shares of --------- Common Stock subject to be purchased in the Offer, (iii) impose conditions reduce the price per share of Common Stock to be paid pursuant to the Offer in addition to those set forth in Annex I heretoOffer, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentenceset forth below, extend the Offer, (viv) change the form of consideration payable in the Offer or Offer, (viivi) amend or modify any other term or condition of the Offer (including the conditions set forth on Exhibit A) in a any manner adverse to the holders of Common Stock or (vii) --------- impose additional conditions to the SharesOffer other than such conditions required by applicable law. Notwithstanding So long as this Agreement is in effect and the foregoingconditions to the Offer set forth on Exhibit A have not been satisfied or waived, Offeror Merger Sub may, --------- without the consent of the Company, extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the eightieth Business Day after the date the Offer is commenced). So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived and such conditions shall not apply to any extension pursuant to this sentence, Merger Sub may, without the consent of the Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act, if (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement number of shares of Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date issued and outstanding shares of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived Common Stock and (ii) Merger Sub shall accept and promptly pay for all shares of Common Stock validly tendered and not withdrawn; provided, however, that no such extension shall exceed, in the aggregate, twenty -------- ------- Business Days. Notwithstanding the foregoing, Merger Sub may without the consent of the Company, extend the Offer (i) 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. The limitations regarding Offer and (ii) for one or --- more periods of up to ten additional Business Days due to the terms and conditions failure to satisfy the condition to the Offer relating to the expiration or termination of the Offer, waiting period under the HSR Act (as defined below). It is agreed that the conditions set forth in Exhibit A are for the second preceding sole benefit of Merger Sub and --------- Purchaser and may be asserted by Merger Sub or Purchaser, or may be waived in whole or in part by Merger Sub or Purchaser, in their sole discretion. The failure by Merger Sub or Purchaser at any time to exercise any of the immediately preceding sentences, foregoing rights shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) deemed a waiver of this Agreementany such right and each such right shall be deemed an ongoing right which may be asserted at any time. Subject to the terms and conditions of the Offer and this Agreement, Offeror Merger Sub shall accept for payment , and pay for, in accordance with the terms of the Offer, all Shares shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer, Offer (subject to compliance with the provisions of Rule 14e-1(c) 14d-11 under the Exchange Act. Subject , to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, extent applicable.)
(c) Purchaser shall provide or cause to be taken, all actions and provided to do, or cause Merger Sub on a timely basis the funds necessary to be done, all things necessary, proper or advisable under applicable laws and regulations purchase any shares of Common Stock that Merger Sub becomes obligated to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect purchase pursuant to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review liable on a direct and comment on primary basis for the Offer Documents and any amendments thereto prior to performance by Merger Sub or the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent Surviving Corporation (as defined in Section 3.3 2.1), as the case may be, of its ----------- obligations under this AgreementAgreement with respect to the payment of the Offer Consideration, the Warrant Consideration (as defined in Section 5.2(d)) and the ------------- Merger Consideration (as defined in Section 5.2(b)). -------------
(d) Merger Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by Purchaser the right to purchase all or any portion of the shares tendered pursuant to the Offer, provided that any such transfer or assignment shall not prejudice the rights of tendering stockholders to receive payment for shares of Common Stock properly tendered and accepted for payment.
Appears in 3 contracts
Sources: Merger Agreement (Telocity Delaware Inc), Agreement and Plan of Merger (Telocity Delaware Inc), Merger Agreement (Hughes Electronics Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure accordance with Article VIII and subject to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto(including that none of the events or conditions set forth therein (the "Exchange Offer Conditions") shall have occurred and be existing and not waived by Parent), Merger Sub shall, and Parent shall or shall cause Merger Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares of common stockCompany Common Shares (including any and all Rights) as promptly as reasonably practicable, par value $0.005 per share, but 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 actions specified in Section 1.1(c). Each Company Common Share accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Parent (i) a fraction of a share of Parent Common Stock (the "Shares" or Stock Portion") determined by dividing (y) the quotient obtained by dividing $3.5 million by the Base Price, by (z) the Fully Diluted Common StockShare Number, with cash paid in lieu of fractional shares, as provided below and (ii) an amount in cash (the "Cash Portion"), at a price of not less than $10.50 per Sharedetermined by dividing (y) the quotient obtained by dividing the Company's Net Cash as reflected on the Reference Balance Sheet, net by (z) the Fully Diluted Common Share Number, rounded to the seller nearest whole cent, with .5 rounded up. The Stock Portion and the Cash Portion, or such greater aggregate amount per share paid by Merger Sub in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be are referred to herein as the "OfferorOffer 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 Offer shall be aggregated, and if a fractional share results from such aggregation, such holder shall be entitled to receive, in 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 which such holder would otherwise have been entitled. The obligation of Offeror Merger Sub to accept for payment and to pay for any Company Common Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Exchange Offer prior to Conditions, this Agreement and applicable Laws. The Company agrees that any Company Common Shares held by the expiration date of the Offer and Company will not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 be tendered pursuant to the terms Offer.
(b) Parent and Merger Sub expressly reserve the right from time to time, without the consent of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion Company, to waive any such condition (including the Minimum Exchange Offer Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to irrevocably increase the price per Share payable in the Offer, to extend the Offer and to Price or make any other changes in to the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Merger Sub shall not, and Parent shall cause Merger Sub not to, (i) decrease the price per Share Offer Price or change the form of consideration payable in the Offer, (ii) decrease the maximum number of Company Common Shares to be purchased sought in the Offer, (iii) modify or amend the Exchange Offer Conditions or impose conditions to the Offer in addition to those set forth the Exchange Offer Conditions in Annex I heretoany manner adverse to the Company Stockholders, (iv) change waive the conditions to the Offer in any material respect adverse to the Company, Minimum Condition or (v) except as provided in the next sentenceSection 1.1(d), extend the Offer, (vi) change Offer if all of the form Exchange Offer Conditions are satisfied. Upon the terms and subject to the satisfaction or waiver of consideration payable in the Offer or (vii) amend any other term conditions of the Offer in a manner adverse and this Agreement (including the Exchange Offer Conditions), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Company Common Shares validly tendered and not withdrawn prior to the holders expiration of the SharesOffer as promptly as possible after expiration of the Offer, unless terminated in accordance with its terms. Notwithstanding Parent shall provide or cause to be provided to Merger Sub on a timely basis shares of Parent Common Stock and funds sufficient to accept for payment and pay for any and all Company Common Shares that Merger Sub becomes obligated to accept for payment and pay for pursuant to the foregoingOffer.
(c) As soon as practicable after the date of this Agreement, Offeror mayParent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments and supplements thereto, the "Form S-4") to register the offer and sale of the shares of Parent Common Stock pursuant to the Offer. The Offer shall be made by means of a preliminary prospectus included in the Form S-4 and containing the information required by Rule 14d-4(b) under the Exchange Act (the "Preliminary Prospectus"), subject only to the Exchange Offer Conditions. As soon as reasonably practicable on the date the Offer is commenced, Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer that will comply in all material respects with the provisions of all applicable federal securities laws, and will contain (including as exhibits) or incorporate by reference the Preliminary Prospectus, forms of the related letter of transmittal and any other documents required to be filed in connection with the Offer (which documents, together with any supplements or amendments thereto, are referred to collectively herein as the "Offer Documents"), which shall be mailed to the Company Stockholders. Merger Sub agrees promptly to correct the Form S-4, the Schedule TO and the Offer Documents if and to the extent that they shall have become false or misleading in any material respect (and the Company, with respect to information supplied by it specifically for use in the Form S-4, the Schedule TO or the Offer Documents, shall promptly notify Merger Sub and its counsel of any required corrections of such information and shall reasonably cooperate with Merger Sub with respect to correcting such information) and to supplement the Form S-4, the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall supplement the information provided by it specifically for use in the Form S-4, the Schedule TO or the Offer Documents to include any information that shall have become necessary or appropriate to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and to take all steps necessary to cause the Form S-4 and the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to Company Stockholders, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Form S-4, the Schedule TO and the Offer Documents before they are filed with the SEC and before they are distributed to Company Stockholders. Merger Sub shall provide the Company and its counsel copies of any written comments and telephone notification of any oral comments that Merger Sub or its counsel receive from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments. Merger Sub shall use its commercially reasonable efforts to respond to such comments promptly.
(d) So long as this Agreement has not been terminated in accordance with the terms hereof, and subject to the terms and conditions hereof (including the Exchange Offer Conditions), the Offer shall expire at midnight, Eastern Standard Time, on the date that is twenty (20) Business Days after the date on which the Offer is commenced; provided, however, that without the consent of the Company, Merger Sub may (i) from time to time, extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any the scheduled expiration date of the Offer, Offer any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Exchange Offer Conditions shall not be have been satisfied or waived, until such time as such conditions Exchange Offer Conditions are satisfied or waived and waived, (ii) from time to time, extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer, (iii) from time to time, extend the Offer for not more than a total of thirty (30) Business Days if there shall not have been delivered to Parent and Merger Sub an At Home Bankruptcy Decision or (iv) from time to time extend the Offer for any reason for not more than a total of thirty (30) Business Days beyond the latest expiration date that would otherwise be permitted by clause (i) or (ii) above. The limitations regarding So long as this Agreement is in effect, the terms and conditions Offer has been commenced, the Exchange Offer Conditions have not been satisfied or waived, none of the Offer, as events or conditions set forth in Annex II (a) through (m) have occurred and is existing at the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) time of this Agreement. Subject to the terms and conditions any scheduled expiration date of the Offer and the failure of the Exchange Offer Conditions to be satisfied is not the result of a breach by the Company of its obligations hereunder, then, provided that such Exchange Offer Conditions are reasonably capable of being satisfied and subject to Merger Sub's right of termination under this Agreement, Offeror Merger Sub shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to cause the Offer not to expire; provided, however, that Offeror becomes obligated Merger Sub shall not be required to accept for payment, and pay for, pursuant to extend the Offer beyond June 30, 2002. Merger Sub may, in addition, provide a "subsequent offer period" (as soon as practicable after expiration of the Offer, subject to compliance with contemplated by Rule 14e-1(c) 14d-11 under the Exchange Act. Subject to the terms and conditions ) of the Offer, Parent and Sub will each use not less than three (3) Business Days following its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate acceptance for payment of Company Common Shares in the Offer.
(be) As soon The parties understand and agree that the Offer Price has been calculated based on, among other things, the accuracy of the representation and warranty set forth in Section 4.3 and that, in the event the number of outstanding Company Common Shares, Company Stock Options or Company Stock Rights exceeds the amounts specifically set forth in Section 4.3 (including as practicable on a result of any stock split, reverse stock split, stock dividend, including any dividend or distribution of securities convertible into stock or stock equivalents of the Company, recapitalization, or other like change occurring after the date of the commencement of the Offerthis Agreement, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect but excluding any Company Common Shares issued pursuant to the Offer which will contain the offer to purchase Company Stock Plans, in accordance with, and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits theretosubject to, Section 6.1(b)(iv)), the "Offer Documents")Price shall be appropriately adjusted. The Offer Documents will comply in all material respects with applicable federal securities laws provisions of this Section 1.1(e) shall not, however, affect the representations and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined warranties set forth in Section 3.3 of this Agreement)4.3.
Appears in 3 contracts
Sources: Merger Agreement (Ivillage Inc), Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a failure majority of Shares being accepted for payment or paid for pursuant to satisfy the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in paragraphs Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (ai) through extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex I heretoA are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall cause Sub to, as be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
(b) As promptly as reasonably practicable following execution of this Agreement, the date hereof, but in no event later than five business days after Parent and the initial public announcement of Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, commence which shall contain an offer to purchase and related letter of transmittal and summary advertisement (within such Schedule 14D-1 and the meaning documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) , and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the holders of Shares, shall not contain any untrue statement of a tender offer (as amended from time material fact or omit to time state any material fact required to be stated therein or necessary in accordance with this Agreementorder to make the statements therein, the "Offer") to purchase all in light of the issued and outstanding shares of common stockcircumstances under which they are made, par value $0.005 per sharenot misleading, of except that no representation is made by 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 the Purchaser with respect 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 shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved information supplied by the 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 writing specifically for inclusion in the Offer or (vii) amend any other term Documents. Each of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing ConditionParent, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror Purchaser and the Company each agree agrees promptly to promptly correct any information provided supplied by it specifically for use inclusion in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will , and each of the Parent and the Purchaser further agrees to 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 as and to the extent required by applicable federal Federal securities laws and any other applicable laws. The Company Parent and its counsel shall be given an opportunity the Purchaser agree to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel in writing with any comments Offeror and its the Parent, the Purchaser or their counsel may receive from the SEC or its staff Staff with respect to the Offer Documents promptly after the receipt thereofof such comments. In the event that The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer is terminated Documents and all amendments and supplements thereto prior to their filing with the SEC or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned dissemination to the registered holders stockholders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Company.
Appears in 3 contracts
Sources: Merger Agreement (Hanna M a Co/De), Merger Agreement (Cimco Inc /De/), Merger Agreement (Cimco Inc /De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article VII hereof and none of the conditions events set forth in paragraphs Annex II hereto (athe "Tender Offer Conditions") through (i) of Annex I hereto, Parent shall or shall cause Sub tohave occurred, as promptly as practicable following the date hereof, but in no event later than five the fifth business days after day from the initial public announcement date of this Agreement, Crane shall cause the Offer, Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) a tender an 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 together with associated Rights (all references herein to shares 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 Company Common Stock in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms context of the Offer prior being deemed to include such Rights) at the expiration date of the Offer and not withdrawn a number of Shares whichPer Share Price, together with any Shares then owned by Parent or Subshall, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 such other terms as Parent and after affording the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") a reasonable opportunity to review and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Conditioncomment thereon, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, file all necessary documents with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 in connection with the staff thereof applicable to Offer (the "Offer Documents") and shall consummate the Offer. The limitations regarding , subject to the terms and conditions thereof. The obligation of the Purchaser to accept for payment or pay for any shares of Company Common Stock tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex II hereto.
(b) Without the prior written consent of the Company, the Purchaser shall not decrease the Offer price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock. The Offer shall remain open until the date that is 20 business days (as such term is defined in Rule 14d-1(c)(6) under the Exchange Act) after the commencement of the Offer (the "Expiration Date"), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable law, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as set forth in so extended, may expire. If at any Expiration Date, any of the second preceding and Tender Offer Conditions are not satisfied or waived by the immediately preceding sentencesPurchaser, shall not be applicable in the event this Agreement is terminated pursuant Purchaser may extend the Offer from time to Section 8.1(d) of this Agreementtime. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Offeror shall the Purchaser will accept for payment , and pay for, for all Shares shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration such Expiration Date of the Offer consistent with applicable law, provided that, if all of the Tender Offer Conditions are satisfied and more than 65% but less than 80% of the outstanding shares of Company Common Stock on a fully diluted basis (including shares of Company Common Stock issuable upon exercise of outstanding options to acquire shares of Company Common Stock) have been validly tendered and not withdrawn in the Offer, subject the Purchaser shall have the right, in its sole discretion, to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to extend the Offer which will contain the offer from time to purchase and form time for up to a maximum of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use 10 additional business days in the Offer Documents if aggregate for all such extensions provided the Purchaser agrees to waive the conditions set forth in paragraphs (c), (f) and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders (g) of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Annex II.
Appears in 3 contracts
Sources: Merger Agreement (Liberty Technologies Inc), Merger Agreement (Liberty Technologies Inc), Merger Agreement (Crane Co /De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result in a failure --------- been terminated pursuant to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toArticle IX, as promptly as practicable following the date hereof, (but in no any ---------- event not later than five business days after the initial public announcement of the Offerexecution and delivery of this Agreement), Richfood shall cause Merger Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer to purchase (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 "Dart Common Stock"), Stock at a price of not less than $10.50 160.00 per Shareshare, net to the seller in cash. For purposes of this Article Icash (such amount, the party which makes or any greater amount per Share paid pursuant to the Offer, whether Parent or Sub, shall be being hereinafter referred to as the "Offeror." Offer Consideration"). The obligation of Offeror Richfood and Merger Subsidiary to commence the Offer, consummate the Offer, accept for payment and to pay for any Shares shares of Dart Common Stock validly tendered in the Offer and not withdrawn shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I ------- hereto, including the condition that a number of Shares representing a majority of all outstanding Shares on a fully- diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer. Offeror The initial expiration date of the Offer will be midnight on the twentieth business day after the Offer is commenced.
(b) Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share share payable in the Offer, to extend the Offer and or to make any other changes in the terms and conditions of the Offer; provided, howeverexcept that without the prior written consent of Dart, that unless -------- ------- previously approved by the Company in writing, Offeror will Merger Subsidiary shall not (i) decrease or change the price per Share payable in form of the Offer Consideration or decrease the number of Shares sought pursuant to the Offer, (ii) decrease the maximum number of Shares impose additional conditions to be purchased in the Offer, (iii) impose conditions extend the expiration date of the Offer (except as required by Law or the applicable rules and regulations of the SEC) or (iv) amend any term of the Offer in any manner adverse to holders of shares of Dart Common Stock; provided, however, that, except as set forth -------- ------- above, Merger Subsidiary may waive any condition to the Offer in addition to those set forth its sole discretion (other than the Minimum Condition, as defined in Annex I heretoI, which ------- Merger Subsidiary may not waive); and provided further, that the Offer may be -------- ------- extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC; and provided, further, that the Offer may be extended by Merger Subsidiary for -------- ------- up to ten (iv10) change business days after the initial expiration date if fewer than 90% of the Shares outstanding as of such date have been tendered at such date, so long as, in connection with such extension, Merger Subsidiary irrevocably waives the conditions to the Offer set forth in any material respect adverse to the Companyclauses (b), (v) except as provided in the next sentence, extend the Offerc), (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Companyf), (ig)(1) extend and (h) of Annex I. Assuming the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any prior satisfaction or waiver of the conditions to Offeror's obligation to the ------- Offer, Merger Subsidiary shall accept for payment, and pay for, Shares (including, in accordance with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) all shares of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares Dart Common Stock validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration date thereof. Notwithstanding the foregoing, Merger Subsidiary shall, and Richfood agrees to cause Merger Subsidiary to, extend the Offer from time to time until June 30, 1998, if, and to the extent that, at the initial expiration date of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject or any subsequent extension thereof, all conditions to the terms Offer have not been satisfied or waived; provided, however, -------- ------- that Richfood and conditions Merger Subsidiary shall have no obligation to extend the Offer if Dart's failure to fulfill any obligation under this Agreement has been the cause of or has resulted in the Offer, Parent and Sub will each use its reasonable best efforts to take, failure of any such condition being satisfied.
(c) Richfood shall provide or cause to be taken, provided to Merger Subsidiary all actions and of the funds necessary to do, or cause purchase any Shares of Dart Common Stock that Merger Subsidiary becomes obligated to be done, all things necessary, proper or advisable under applicable laws and regulations purchase pursuant to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Dart Group Corp), Merger Agreement (Richfood Holdings Inc), Merger Agreement (Dart Group Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Section 8.1 and none of the events or conditions set forth in paragraphs Article 6 shall have occurred and be existing (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tounless waived as provided in Article 6), as promptly as practicable following after the date hereof, hereof (but in no event later than five the twentieth business days day after the initial public announcement of the Offerthis Agreement), Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer , the Offer. The Offer will be made pursuant to the Offer Documents (as amended from time to time defined below) containing the terms and conditions set forth in accordance with this Agreement. Acquisition shall accept for payment, purchase and pay for all Shares, Convertible Preferred Stock and Warrants which have been validly tendered and not withdrawn pursuant to the "Offer") to purchase all Offer at the earliest time following expiration 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 Offer that all conditions to the seller Offer set forth in cashArticle 6 shall have been satisfied or waived by Acquisition. 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 Acquisition to accept for payment payment, purchase and to pay for any Shares Shares, Convertible Preferred Stock and Warrants tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall at least a majority of the then issued and outstanding Shares (giving effect to the conversion of all outstanding shares of Convertible Preferred Stock and the exercise of all then outstanding Warrants) be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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) satisfaction of the other conditions set forth in Annex I heretoArticle 6. Offeror Acquisition expressly reserves the right in its sole discretion to waive any such condition (including other than the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and or to make any other changes in the terms and conditions of the Offer; providedOffer (provided that, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease no change may be made which decreases the price per Per Share payable in Amount, which reduces the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose which changes the form of consideration to be paid in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in Article 6 or which amends or changes 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 term or (vii) amend any other term condition of the Offer in a manner adverse to the holders of Shares). In the Sharescase of shares of Convertible Preferred Stock tendered pursuant to the Offer, Acquisition shall pay the Per Share Amount multiplied by the number of Shares into which such Shares of Convertible Preferred Stock are then convertible. Notwithstanding In the foregoingcase of Warrants tendered pursuant to the Offer, Offeror mayAcquisition shall purchase such Warrants for a purchase price equal to the difference between the exercise price thereof and the Per Share Amount, multiplied by the number of Shares for which such Warrants are then exercisable. The Per Share Amount shall be paid net to each seller in cash, less any required withholding of taxes, upon the terms and subject to the conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on January 3, 2001 (the "Initial Expiration Date"); provided, however, without the consent of the CompanyBoard, Parent may cause Acquisition to (i) from time to time extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date the Initial Expiration Date of the Offer, any of the conditions to Offeror's obligation the Offer necessary to accept for payment, and pay for, Shares consummate the Offer have not been satisfied or waived (including, with respect to other than the Financing Minimum Condition, the consummation of the sale of the Senior Notes to which this clause (as defined in Section 4.2(di) does not apply)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and waived; (ii) extend the Offer for any period required by any applicable rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to thereof; (iii) if the Minimum Condition is not satisfied, extend the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, ; provided that all extensions pursuant to clauses (i) through (iii) hereof shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(dexceed twenty (20) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment business days, and pay for, all (iv) if the Minimum Condition is satisfied but the number of Shares validly tendered and not withdrawn pursuant represents less than ninety percent (90%) of the then outstanding Shares (giving effect to the Offer that Offeror becomes obligated to accept for paymentconversion of all then outstanding shares of Convertible Preferred Stock and the exercise of all then outstanding Warrants), and pay for, pursuant to after consummation of the Offer as soon as practicable after and payment for all validly tendered shares, commence one subsequent offer for the Shares provided that Acquisition shall meet the requirements of Rule 14d-11 under the Exchange Act in connection with such subsequent offer; provided however, that in no event shall any such subsequent offer period exceed twenty (20) business days. In addition, Parent and Acquisition agree that Acquisition shall from time to time extend the Offer if requested by the Company, if, at the Initial Expiration Date (or any extended expiration date of the Offer, subject to compliance with Rule 14e-1(c) under if applicable), any of the Exchange Act. Subject conditions to the terms and conditions of Offer including the OfferMinimum Condition shall not have been waived or satisfied, Parent and Sub will each use its reasonable best efforts until (taking into account all such extensions) February 28, 2001, provided, however, that if the Minimum Condition is the only condition to takethe Offer not then satisfied, or cause Acquisition shall not be required to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate extend the OfferOffer for more than twenty (20) business days.
(bc) As soon as practicable on after the date of the commencement of the Offer, Offeror Acquisition shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer Offer, which will contain the shall include an offer to purchase and form of the related transmittal letter of transmittal and summary advertisement (together with any amendments thereof or supplements or amendments thereto and including exhibits thereto, collectively the "Offer Documents"). The Offer Documents will shall comply in all material respects with the provisions of applicable federal securities laws and any other applicable lawsthe rules and regulations of the SEC. Parent, Offeror Acquisition and the Company each agree agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will , and Acquisition further agrees to take all steps necessary to cause the Offer Documents as so corrected to be promptly filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable lawsthe rules and regulations of the SEC. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof their being filed with the SEC; provided that Offeror will attempt . Parent and Acquisition agree to give provide to the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its or other communications which Parent, Acquisition or their counsel may receive receives from the staff of the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Chesapeake Biological Laboratories Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 and no event set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toand be continuing, as promptly as practicable following the date hereof, (but in no event later than five ten (10) business days after the initial public announcement of the Offerexecution 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 (the "Exchange Act")) a tender ) an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 0.57 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such other price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller; 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, and at the commencement of, the Offer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The obligation Company shall not tender Shares held by it or by any of Offeror its subsidiaries pursuant to the Offer. The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer, accept for payment and to pay for any Shares tendered in the as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be subject only made by means of an offer to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis purchase (the "Minimum ConditionOffer to Purchase"), (ii) the 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 containing the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in this Agreement and the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves A hereto and providing for an initial expiration date (the right "Expiration Date", which term shall also indicate any later date to which the Offer is extended in its sole discretion to waive any such condition accordance with this Agreement) of twenty (including 20) business days (as defined in Rule 14d-1 under the Minimum Condition, provided that no such waiver Exchange Act) from the date of commencement of the Minimum Condition Offer. The Purchaser shall not, and Parent shall cause the Purchaser not to, decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase Offer Price or decrease the price per Share payable number of Shares sought in the Offer, amend the conditions to extend the Offer and to make any other changes set forth in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the 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) Annex A or impose conditions to the Offer in addition to those set forth in Annex I heretoA, (iv) change without the conditions to the Offer in any material respect adverse to prior written consent of the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror The Purchaser may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (iiA) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, but in no event more than an additional fifteen (15) business days if Parent and Purchaser are not in material breach of this Agreement and if any condition to the Offer is not satisfied or waived and such condition is reasonably capable of being satisfied and (B) if, on the Expiration Date, the Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty percent (80%) of the outstanding Shares (on a fully diluted basis, as such term is defined in Annex A), (1) extend the Offer for up to ten (10) business days, or (2) provide a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act, in each case notwithstanding that all the conditions to the Offer were satisfied as of the date such extension or subsequent offering period, as the case may be, is announced. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by any rulelaw in connection with such increase, regulation, interpretation or position in each case without the consent of the Company.
(c) On the date the Offer is commenced, Parent and Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will (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 Offer to purchase Purchase and a form of the related 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 or amendments thereto and including exhibits thereto, collectively the "Offer Documents"). The Offer Documents will 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 other 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 federal securities laws. ParentEach of Parent and Purchaser, Offeror on the one hand, and the Company each agree to Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect. Offeror will respect prior to the Expiration Date 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on upon the Offer Documents (and shall provide any amendments thereto comments thereon as soon as practicable) prior to the filing thereof with the SEC; provided that Offeror will attempt to give . In addition, Parent shall, and shall cause the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser to, provide the Company and its counsel in writing with any comments Offeror and its that Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated of such comments and with copies of any written responses and telephonic notification of any verbal responses by Parent, Purchaser or withdrawn by Offeror, their counsel.
(d) Parent and Sub shall provide or cause all tendered Shares to be returned provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 3 contracts
Sources: Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article VIII hereof and none of the conditions events set forth in paragraphs (a) through (i) of Annex I hereto, Parent hereto (the "Tender Offer Conditions") shall or shall cause Sub tohave occurred, as promptly as practicable following the date hereof, but in no event later than five the fifth business days after day from the initial public announcement date of this Agreement, Parent shall cause the OfferPurchaser to, and the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") 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"), Shares 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 Price and shall be subject only to (i) the condition that there shall be validly tendered in accordance file all necessary documents with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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") in connection with the Offer (together with any amendments or supplements to the staff thereof applicable to "Offer Documents"). The Offer shall remain open until at least the twentieth business day after the commencement of the Offer. Purchaser shall disseminate to holders of Common Shares the Offer Documents to the extent required by law. The limitations regarding obligation of the terms and Purchaser to accept for payment or pay for any Shares tendered pursuant thereto will be subject only to the satisfaction of the conditions set forth in Annex I hereto.
(b) Without the prior written consent of the Company, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, as set forth decrease the number of Shares sought to be purchased in the second preceding and Offer, impose additional conditions to the immediately preceding sentences, Offer or amend any other term of the Offer in any manner adverse to the holders of Shares or reduce the time period during which the Offer shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreementremain open. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction or waiver of all the Tender Offer Conditions as of any expiration date, Offeror shall the Purchaser will accept for payment , and pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after such expiration date of the Offer. Notwithstanding the foregoing, the Purchaser shall be entitled to extend the Offer, if at the initial expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject or any extension thereof, any condition to the terms Offer is not satisfied or waived, and conditions Parent agrees to cause the Purchaser to extend the Offer up to 40 days in the aggre- gate, in one or more periods of not more than 10 business days, if, at the initial expiration date of the Offer, Parent and Sub will each use its reasonable best efforts or any extension thereof, any condition to takethe Offer set forth in paragraphs (a), or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon or (g) of Annex I is not satisfied or waived; provided, however, that the Purchaser shall not be required to extend the Offer as practicable provided in this sentence unless, in Parent's reasonable judgment, (i) each such condition is reasonably capable of being satisfied and (ii) the Company is in material compliance with all of its covenants under this Agreement. In addition, without limiting the foregoing, the Purchaser may, without the consent of the Company, if, on the expiration date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect Shares validly tendered and not withdrawn pursuant to the Offer which will contain are sufficient to satisfy the offer Minimum Condition (as defined in Annex I hereto) but equal to purchase and form less than 90% of the related letter outstanding Shares, extend the Offer for up to 15 business days in the aggregate notwithstanding that all the conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of transmittal and summary advertisement any of the conditions to the Offer (together with other than those set forth in paragraphs (a), (b) or (d) of Annex I) that subsequently may not be satisfied during any supplements or amendments thereto and including exhibits theretosuch extension of the Offer. In addition, the "Offer Documents"). The 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.
(c) Parent and the Purchaser represent that the Offer Documents will 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 made 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. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any other applicable lawsmaterial amendments thereto prior to the filing thereof with the SEC. Parent, Offeror Each of Parent and the Company each agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws and any other applicable laws. The Company Parent and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror Purchaser will provide the Company and its counsel with a copy of any written comments Offeror and its counsel or telephonic notification of any oral comments Parent or Purchaser may receive received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and will provide the receipt thereof. In the event that the Offer is terminated Company and its counsel with a copy of any written responses and telephonic notification of any oral responses of Parent, Purchaser or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)their counsel.
Appears in 2 contracts
Sources: Merger Agreement (United States Filter Corp), Merger Agreement (United States Filter Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result previously been validly terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with its terms, as promptly as practicable following the date hereof, of this Agreement (but in no event later than five business days after the initial public announcement of the OfferOctober 4, 2010), Parent shall cause Purchaser to, and Purchaser shall, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act Act) the Offer for all (or, solely in the circumstances described in Section 2.1(e)(ii), the Reduced Purchase Amount) of 1934, the outstanding Company Shares for a price per Company Share equal to the Per Share Amount (as amended adjusted as provided in Section 2.1(h)). The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase”) and form of the related letter of transmittal (the Schedule TO, the Offer to Purchase and any other ancillary documents pursuant to which the Offer will be made, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”) that contain the terms and conditions set forth in this Agreement and Annex A. The date on which Purchaser commences the Offer, within the meaning of Rule 14d-2 promulgated under the Exchange Act"), is referred to in this Agreement as the “Offer Commencement Date.”
(b) a tender offer (as amended from time Subject to time the extension rights of the parties set forth 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 the satisfaction or waiver of each of the conditions set forth in Annex A (i) the condition that there shall be validly tendered “Tender Offer Conditions”). Unless the Offer is extended pursuant to and in accordance with the terms of this Agreement, promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) after the expiration of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, (i) all Company Shares validly tendered pursuant to the Offer prior to the expiration date of the Offer (and not withdrawn a number of Shares which, together with any Shares then owned by Parent properly withdrawn) or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) in the receipt circumstances contemplated by Section 2.1(e)(ii), Company Shares representing the Reduced Purchase Amount (such date of cash proceeds acceptance for payment, the “Acceptance Time”). Without limiting the generality of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient foregoing, Parent shall provide or cause to consummate be provided to Purchaser on a timely basis the transactions contemplated hereby funds necessary to pay for any Company Shares that Purchaser becomes obligated to purchaser pursuant to the terms Offer. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by or with respect to such seller. No Company Shares held by the Company or any Company Subsidiary shall be tendered pursuant to the Offer.
(c) Each of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I hereto. Offeror Purchaser expressly reserves the right from time to time, in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)absolute discretion, to increase the price per Per Share payable in Amount, waive any Tender Offer Condition or amend, modify or supplement any of the Offer, to extend the Tender Offer and to make any other changes in the Conditions or terms and conditions of the Offer; provided. Notwithstanding anything to the contrary contained in this Agreement, howeverneither Parent nor Purchaser shall, that unless -------- ------- previously approved by without the prior written consent of the Company in writing, Offeror will not and except as otherwise permitted or required by Sections 2.1(d)-(f):
(i) decrease change or waive the price per Share payable in the Offer, Minimum Condition;
(ii) decrease the maximum number of Company Shares sought to be purchased by Purchaser in the Offer, ;
(iii) impose conditions to reduce the Offer in addition to those set forth in Annex I hereto, Per Share Amount;
(iv) extend or otherwise change the conditions to Expiration Date of the Offer in any material respect adverse to the Company, Offer;
(v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer;
(vi) amend, modify or supplement any of the Tender Offer or Conditions (other than to waive such Tender Offer Conditions); or
(vii) amend any other term amend, modify or supplement terms of the Offer in a manner adverse to that adversely affects the holders of Company Shares in their capacities as holders of Company Shares.
(d) Unless the SharesOffer is extended pursuant to and in accordance with this Agreement, the Offer shall expire at midnight, New York City time, on the day that is twenty (20) business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the Offer Commencement Date (the “Initial Expiration Date”). Notwithstanding the foregoing, Offeror may, without unless the consent of Agreement is terminated in accordance with the Companyterms hereof, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or 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") SEC or its staff or the staff thereof NASDAQ Global Market (“Nasdaq”) that is applicable to the Offer, and (ii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (together with the Initial Expiration Date, the “Expiration Date”), any Tender Offer Condition is not satisfied or waived, Purchaser shall extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that in no event with respect to either clause (i) or (ii) shall Purchaser be required to extend the Offer beyond the Outside Date; and provided further however, that if, at the Initial Expiration Date or at any subsequent Expiration Date (other than any such Expiration Date that follows an extension of the Offer pursuant to Sections 2.1(e)(i) or 2.1(f)), all of the Tender Offer Conditions (except for the Minimum Condition) are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its Expiration Date beyond the Initial Expiration Date or such subsequent Expiration Date for one or more successive periods in order to permit the satisfaction of all of the Tender Offer Conditions for an aggregate of forty (40) business days, unless the Minimum Condition shall be satisfied earlier. Except as otherwise provided in Sections 2.1(e) and 2.1(f), neither Parent nor Purchaser shall extend the Offer in any manner other than pursuant to and in accordance with this Section 2.1(d) without the prior written consent of the Company. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, Offer shall not be applicable in terminated prior to the event Outside Date, unless this Agreement is validly terminated pursuant to in accordance with Section 8.1(d9.1, in which case Purchaser shall (and Parent shall cause Purchaser to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one business day) after such termination of this Agreement. Subject Nothing in this Section 2.1(d) shall affect any termination rights in Section 9.1.
(e) Notwithstanding anything to the terms contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but the number of Company Shares validly tendered in the Offer and conditions not properly withdrawn is less than that number of Company Shares which, when added to the number of Company Shares that may be issued pursuant to the Top-Up Option in compliance with Section 2.3, would represent at least one (1) Company Share more than ninety percent (90%) of the issued and outstanding Company Shares then outstanding (including such Company Shares issued upon exercise of the Top-Up Option) (the “Short-Form Merger Threshold”), then in such case Purchaser may, in its sole and absolute discretion, without the consent of the Company:
(i) extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) until the Outside Date in order to permit additional Company Shares to be tendered into the Offer such that the Short-Form Merger Threshold may be attained; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to extend the Offer pursuant to and in accordance with this Section 2.1(e)(i), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer Conditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in full force and effect) and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as it relates to the Tender Offer Condition contemplated by clause (iii)(d) of Annex A, but not as it relates to the Tender Offer Condition contemplated by clause (iii)(e) of Annex A), or 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of the Offer pursuant to this Section 2.1(e)(i), the Company shall not exercise any remedies against Parent or Purchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for) all Company Shares validly tendered in the Offer and not properly withdrawn at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be in breach of this Agreement); or
(ii) (A) amend the Offer and the Offer Documents (but only to the extent required by applicable Law) to reduce the Minimum Condition to such number of Company Shares (the “Reduced Purchase Amount”) such that following the purchase of Company Shares in the Offer, Parent and its wholly owned subsidiaries, including Purchaser, would own forty-nine and nine-tenths percent (49.9%) of the Company Shares then outstanding and (B) purchase, on a pro rata basis based on the Company Shares actually deposited in the Offer by such each holder of Company Shares, Company Shares representing the Reduced Purchase Amount in the Offer; provided, however, that notwithstanding any other provision of this Agreement, Offeror in the event Purchaser purchases a number of Company Shares equal to the Reduced Purchase Amount pursuant to and in accordance with this Section 2.1(e)(ii), then, without the prior written consent of Parent and Purchaser, at all times prior to the termination of this Agreement, the Company shall take no action whatsoever (including the redemption of any Company Shares) that would have the effect of increasing the percentage of direct or indirect ownership of Company Shares by Parent and its controlled affiliates, including Purchaser, in excess of forty-nine and nine-tenths percent (49.9%).
(f) Notwithstanding anything to the contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but (i) there exists an uncured Financing Failure and (ii) such Financing Failure impedes the ability of Parent or Purchaser to accept Company Shares for payment in the Offer, then: (A) Purchaser shall be permitted to extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) until the Outside Date in order to permit such Financing Failure to be cured; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to extend the Offer pursuant to and in accordance with this Section 2.1(f), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer Conditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in full force and effect) and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as it relates to the Tender Offer Condition contemplated by clause (iii)(d) of Annex A, but not as it relates to the Tender Offer Condition contemplated by clause (iii)(e) of Annex A), or 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of the Offer pursuant to this Section 2.1(f), the Company shall not exercise any remedies against Parent or Purchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for, ) all Company Shares validly tendered in the Offer and not properly withdrawn pursuant at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be in breach of this Agreement).
(g) If immediately following the Acceptance Time and assuming exercise in full of the Top-Up Option, Parent, Purchaser and their respective wholly owned subsidiaries would own less than ninety percent (90%) of the Company Shares outstanding at that time (after giving effect to the Offer that Offeror becomes obligated to exercise in full of the Top-Up Option), Purchaser may, in its sole discretion without the consent of the Company, provide for a “subsequent offering period” (and one (1) or more extensions thereof) following the Acceptance Time (as provided in Rule 14d-11 under the Exchange Act) of not less than three (3) nor more than twenty (20) business days in the aggregate (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act). Promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) after any Company Shares are validly tendered during any such subsequent offering period (or extension thereof), Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, pursuant to all such Company Shares. Without limiting the Offer as soon as practicable after expiration generality of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offerforegoing, Parent and Sub will each use its reasonable best efforts to take, shall provide or cause to be takenprovided to Purchaser on a timely basis the funds necessary to pay for any Company Shares that Purchaser becomes obligated to purchaser pursuant to such subsequent offering period (or extension thereof). The Per Share Amount shall be net to the seller in cash, all actions and without interest, subject to do, reduction for any applicable withholding or cause stock transfer Taxes payable by or with respect to such seller. No Company Shares held by the Company or any Company Subsidiary shall be done, all things necessary, proper tendered pursuant to such subsequent offering period (or advisable under applicable laws and regulations to consummate the Offerextension thereof).
(bh) The Per Share Amount shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Company Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by Purchaser for the Company Shares; provided, however, that nothing in this Section 2.1(h) shall be construed as permitting the Company to take any action or enter into any transaction otherwise prohibited by this Agreement.
(i) As soon promptly as reasonably practicable on the date of the commencement of the Offer, Offeror Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer which will Offer. The Schedule TO shall contain or shall incorporate by reference the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Purchaser shall use its reasonable best efforts to cause the Offer Documents will to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws and any other applicable laws. Parent, Offeror Purchaser and the Company each agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary , and Parent and Purchaser further agree to use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and to be disseminated to holders of Sharesthe other Offer Documents, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).correcte
Appears in 2 contracts
Sources: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that nothing shall have occurred that would result Subject to this Agreement not having been terminated in a failure to satisfy any accordance with the provisions of the conditions set forth in paragraphs (a) through (i) of Annex I heretoSection 8.1 hereof, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereofpracticable, but in no event later than five business days after from the initial date of the public announcement of the terms of this Agreement or the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer to purchase for cash (as it may be amended from time to time in accordance with the terms of this Agreement, the "OfferOFFER") to purchase all of the issued and outstanding shares of common stock, $1.00 par value $0.005 per sharevalue, of the Company (including the common stock purchase rights referred to in Section 6.12 hereof (collectively, the "Shares" or SHARES"Common Stock)) outstanding immediately prior to the consummation of the Offer, subject to the conditions set forth in Exhibit A hereto (the "CONDITIONS"), at a price of not less than $10.50 29.00 per Share, net to the seller in cash. For purposes Subject to this Agreement not having been terminated in accordance with the provisions of this Article ISection 8.1 hereof and to the Conditions, the party which makes the OfferPurchaser shall, whether and Parent or Subshall cause Purchaser to, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any all Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with pursuant to the terms of the Offer Offer, and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares whichOffer, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent as promptly as practicable following the expiration date of the Shares outstanding Offer. If all of the Conditions are not satisfied on a fullythe initial expiration date of the Offer, and the Agreement has not been terminated in accordance with the provisions of Section 8.1, Parent shall, and shall cause Purchaser to, extend (and re-diluted basis (the "Minimum Condition"), (iiextend) the receipt Offer to provide time to satisfy such Conditions provided that Purchaser or Parent may but in no event shall be obligated to extend the period of cash proceeds of time 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 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 set forth in Annex I hereto. Offeror expressly reserves the right Offer is open beyond August 15, 1997 or, if Purchaser has elected, in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offerjudgment, to extend the Offer and beyond August 15, 1997 pursuant to make any other changes in the last sentence of this Section 1.1(a), November 15, 1997 (such applicable date being known as the "Final Termination Date"). Purchaser expressly reserves the right to amend the terms and conditions of the Offer; provided, howeverthat without the consent of the Company, that unless -------- ------- previously approved by the Company in writing, Offeror will not no amendment may be made which (i) decrease decreases the price per Share or changes the form of consideration payable in the Offer, (ii) decrease decreases the maximum number of Shares to be purchased in the Offersought, or (iii) impose imposes additional conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend amends any other term of the Offer in a any manner adverse to the holders of Shares (it being understood that extensions of the Offer as contemplated by this Section 1.1(a) are not adverse to the holders of Shares). Notwithstanding the foregoing, Offeror mayPurchaser shall, without the consent of the Companyin its judgment, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not have right to extend beyond July 31, 1998, if at any scheduled expiration date of and re-extend the Offer, any from time to time, but in no event beyond November 15, 1997, if it believes that such extension is advisable in order to facilitate the orderly transition of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation business of the sale of Company and preserve and maintain the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany's business relationships.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and will not, nor will it permit any of its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent Subsidiaries (as defined in Section 3.3 below) to, tender into the Offer any Shares beneficially owned by it. For purposes of this Agreement, "SUBSIDIARY" means, as to any Person (as defined below), any corporation, limited liability company, partnership or joint venture, whether now existing or hereafter organized or acquired: (i) in the case of a corporation, of which at least a majority of the outstanding shares of stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (other than stock having such voting power solely by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of its Subsidiaries or (ii) in the case of a limited liability company, partnership or joint venture, in which such Person or a Subsidiary of such Person is a managing member, general partner or joint venturer or of which a majority of the partnership or other ownership interests are at the time owned by such Person and/or one or more of its Subsidiaries. For purposes of this Agreement, "PERSON" means any individual, corporation, company, voluntary association, limited liability company, partnership, joint venture, trust, unincorporated organization or other entity.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BBN Corp), Merger Agreement (Gte Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article IX hereof and none of the conditions events set forth in paragraphs clause (a) through (iiii) of Annex I hereto, Parent the Tender Offer Conditions shall or shall cause Sub tohave occurred, as promptly as reasonably practicable following the date hereof, (but in no event later than five business days March 26, 2008) after the initial public announcement date of the Offerthis Agreement, Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an 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 stockSeller Common Stock at the Offer Price, 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 and shall use its reasonable best efforts to the seller in cash. For purposes of this Article I, the party which makes consummate the Offer, whether subject to the terms and conditions hereof and thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent or Subshall cause Purchaser to, shall be referred to as promptly after the "Offeror." The obligation expiration of Offeror to the Offer, accept for payment and to pay for (after giving effect to any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be required withholding Tax), all shares of Seller Common Stock validly tendered in accordance with the terms of the Offer prior pursuant to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"time and date of acceptance for payment, the “Acceptance Date”), .
(iib) the 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 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 set forth in Annex I hereto. Offeror expressly Purchaser reserves the right to waive, in its sole discretion to waive whole or in part, any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Tender Offer Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in or modify the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of Seller, Offeror will Purchaser shall 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) Price or change the form of consideration payable in the Offer, waive or amend the Minimum Condition (as defined in Annex I hereto), decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders Seller Stockholders. The Offer shall remain open until 12:00 midnight, Boston, Massachusetts time, on the date that is twenty (20) Business Days after the commencement (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) of the Shares. Notwithstanding Offer (the foregoing“Expiration Date”), Offeror may, without unless Purchaser shall have extended the consent period of the Company, (i) extend time for which the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 paymentis open pursuant to, and pay for, Shares (including, with respect to the Financing Conditionin accordance with, the consummation of the sale of the Senior Notes (succeeding sentence or as defined in Section 4.2(d)) shall not may be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation applicable Laws or position interpretations of the Securities and Exchange Commission (the "“SEC"”) or its staff, in which event the staff thereof applicable to term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Purchaser may provide a subsequent offering period (and one or more extensions thereof) after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. The limitations regarding If at any Expiration Date, any of the terms and conditions Tender Offer Conditions is not satisfied or waived by Purchaser, Purchaser may extend the Offer from time to time; provided, however, that if all of the Tender Offer Conditions other than the Minimum Condition are satisfied or waived as of the scheduled expiration of the initial twenty (20) Business Day offering period, then Purchaser shall extend such Expiration Date on one or more occasions for a total of an additional thirty (30) calendar days; provided further that on any scheduled Expiration Date of the Offer, as (i) if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Offer or the Merger shall have not expired or been terminated, Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations; or (ii) if any of the Tender Offer Conditions set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(dparagraph (a) of clause (iii) of Annex I hereto shall have occurred and be continuing, Purchaser shall extend the Offer from time to time until the earlier of (A) five (5) Business Days after the time such condition or conditions shall no longer exist or (B) such time at which any of the matters described in such paragraph (a) of clause (iii) of Annex I hereto shall have become final and non-appealable. Nothing contained in this Agreementparagraph shall affect any termination rights of the parties in Article IX. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Offeror shall Purchaser will accept for payment , and pay for, for all Shares shares of Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable promptly after expiration such Expiration Date of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VII and none of the events set forth in Annex A hereto ------- shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following after the date hereof, hereof (but in no event later than five the fifth business days day after the initial public announcement of the Offerterms of this Agreement), commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an 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 Common Stock (the "Shares" or "Common Stock"), and associated Rights) at a price of not less than 38.50 United States Dollars ($10.50 38.50) per Shareshare and associated Right (the "Offer Price"), 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 subject to as the "Offeror." The obligation of Offeror to accept for payment and to pay ----------- reduction for any Shares tendered applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer shall be subject the twentieth business day from and after the date the Offer is commenced (the "Initial Expiration Date"). The obligation of Purchaser to accept for payment, ----------------------- purchase and pay for any shares of Company Common Stock (and associated Rights) tendered pursuant to the Offer shall be subject, except as provided in Section 1.1(b), only to the satisfaction of (i) the condition that there shall be a number of shares of Company Common Stock representing not less than fifty-one percent (51%) of the total issued and outstanding shares of Company Common Stock on a diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights or securities convertible into shares of Company Common Stock) (excluding any shares of Company Common Stock held by the Company or any of its Subsidiaries (as defined below)) on the date such shares are purchased pursuant to the Offer have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), ) and (ii) the 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 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 set forth in Annex I A hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless Purchaser ------- -------- ------- previously approved by expressly reserves the Company right to waive any of the conditions to the Offer (other than the Minimum Condition) and to make any change in writingthe terms or conditions of the Offer in its sole discretion, Offeror subject to Section 1.1(b).
(b) Without the prior written consent of the Company, neither Parent nor Purchaser will not (i) decrease the price per Share share of Company Common Stock payable in the Offer, (ii) decrease the maximum number of Shares to be purchased shares of Company Common Stock sought in the Offer, (iii) change the form of consideration payable in the Offer, (iv) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the CompanyA, (v) except as provided in below or required by any rule, regulation, ------- interpretation or position of the next sentence, extend Securities and Exchange Commission (the "SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) --- otherwise amend or change the form of consideration payable in the Offer any term or (vii) amend any other term condition of the Offer in a manner materially adverse to the holders of the Sharesshares of Company Common Stock. Notwithstanding anything in this Agreement to the foregoing, Offeror maycontrary, without the consent of the Company, (i) Purchaser shall have the right to extend the Offer beyond any scheduled expiration date the Initial Expiration Date in the following events: (i) from time to time if, at the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled Initial Expiration Date (or extended expiration date of the Offer, if applicable), any of the conditions to Offeror's obligation the Offer (other than the Minimum Condition to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)which this clause does not apply) shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff Staff thereof applicable to the Offer or any period required by applicable law; (iii) if all conditions to the Offer other than the Minimum Condition are satisfied or waived, but the Minimum Condition has not been satisfied, for one or more periods not to exceed ten (10) business days each (or an aggregate of thirty (30) business days for all such extensions); or (iv) if all of the condi- tions to the Offer are satisfied or waived but the number of shares of Company Common Stock validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of shares of Company Common Stock on a diluted basis, for an aggregate period not to exceed twenty (20) business days (for all such extensions), provided that Purchaser shall accept and promptly pay -------- for all securities tendered prior to the date of such extension and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension. In addition, Parent and Purchaser agree that Purchaser shall from time to time extend the Offer. The limitations regarding , if requested by the terms and conditions Com pany, if at the Initial Expiration Date (or any extended expiration date of the Offer, as including pursuant to this sentence, if applicable), all of the conditions to the Offer other than the Minimum Condition and/or the conditions set forth in the second preceding clause (a) or clause (b) of Annex A shall have been waived or satisfied and the immediately preceding sentencesMinimum Condition and/or the conditions set forth in clause (a) or clause (b) of Annex A shall not have been satisfied, until the earlier of ten (10) business days after such expiration date or September 30, 2000 in the case of the Minimum Condition or November 30, 2000 in the case of clause (a) or clause (b) or such earlier date upon which either such condition shall not be applicable in reasonably capable of being satisfied prior to November 30, 2000. Upon the event this Agreement is terminated pursuant prior satisfaction or waiver of all the conditions to Section 8.1(d) of this Agreement. Subject the Offer, and subject to the terms and conditions of the Offer and this Agreement, Offeror shall Purchaser will, and Parent will cause Purchaser to, accept for payment payment, pur chase and pay for, in accordance with the terms of the Offer, all Shares shares of Company Com mon Stock validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer, subject to compliance with Rule 14e-1(c.
(c) under As soon as reasonably practicable on the Exchange Act. Subject to the terms and conditions date of commencement of the Offer, Parent and Sub will each use its reasonable best efforts to take, Purchaser shall file or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with any amendments or supplements thereto, the "Schedule TO") with respect to the Offer which Offer. The Schedule ----------- TO will comply as to form and content in all material respects with the applicable provisions of the federal securities laws and will contain the offer to purchase and form of the related letter of transmittal (such Schedule TO and summary advertisement (such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror --------------- Parent and the Company each agree agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become be come false or misleading in any material respectrespect and to supplement the information provided by it specifically for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Offeror will Parent and Purchaser agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to be disseminated to holders of Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof their being filed with the SEC; provided that Offeror will attempt . Parent and Purchaser agree to give provide to the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its or other communications which Parent, Purchaser or their counsel may receive from the Staff of the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc), Agreement and Plan of Merger (Novartis Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 7.1, as promptly as practicable following (and in any event within seven (7) Business Days) after the date hereof, but in no event later than five business days after the initial public announcement of the Offer, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") 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"), Shares at a price of not less than $10.50 per Share, net share equal 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 "OfferorOffer Price."
(a) The obligation of Offeror Purchaser to, and of Parent to cause Purchaser to, accept for payment and to pay for any Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction, or waiver by Purchaser or Parent, of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I heretoA (the “Offer Conditions”). Offeror Subject to the satisfaction, or waiver by Purchaser or Parent, of the Offer Conditions, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and irrevocably accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable (and in any event within three (3) Business Days) after the Expiration Date and in any event in compliance with Rule 14e-1(c) under the Exchange Act (the time of such acceptance for payment, the “Acceptance Time”); provided, however, that notwithstanding anything herein to the contrary, in no event shall Purchaser be required to accept for payment, and pay for, Shares validly tendered (and not withdrawn) pursuant to the Offer until the Marketing Period shall have been completed. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller of such Share in cash, without interest, subject to the withholding of any Taxes required by applicable Law, on the terms and subject to the conditions set forth in this Agreement. The time scheduled for payment for shares of Company Common Stock accepted for payment pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(b) The Offer shall be made by means of an offer to purchase that describes the terms and conditions of the Offer as set forth in this Agreement. Purchaser and Parent expressly reserves reserve the right in its sole discretion to waive (in whole or in part) any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Offer Condition shall decrease the Minimum Condition at any time and from time to less than sixty-six and two-thirds (66 2/3%) percent)time, to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Purchaser shall not (i) decrease the price per Share Offer Price, (ii) change the form of consideration payable in the Offer, (iiiii) decrease reduce the maximum number of Shares to be purchased in the Offer, (iiiiv) amend, modify or waive the Minimum Condition, (v) amend, modify or supplement any Offer Condition in a manner that is or could reasonably be expected to be adverse to any holder of Shares in its capacity as such or impose conditions to the Offer that are in addition to those the Offer Conditions or (vi) extend or otherwise change any time period for the performance of any obligation of Purchaser or Parent (including the Expiration Date) in a manner other than pursuant to and in accordance with this Agreement.
(c) Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire at midnight, New York City time, on the date that is twenty (20) Business Days (calculated as set forth in Annex I hereto, (ivRule 14d-1(g)(3) change and Rule 14e-1(a) under the conditions to Exchange Act) after the Offer in 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 (vii) amend any other term commencement of the Offer in a manner adverse to (the holders of the Shares“Initial Expiration Date”). Notwithstanding the foregoing, Offeror may(x) if, without at midnight, New York City time, on the consent Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied or, to the extent waivable in accordance with the terms hereof, has not been waived by Purchaser or Parent, Purchaser shall (subject to the rights or remedies of the Companyparties hereto hereunder, including under Article VII), extend (iand re-extend) the Offer and its expiration date beyond the Initial Expiration Date (the Initial Expiration Date as it may be extended herein is referred to as the “Expiration Date”) for one or more periods, in consecutive increments of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree) to permit such Offer Condition to be satisfied; (y) Purchaser shall have the right in its sole discretion to extend the Offer beyond any then-scheduled expiration date of the Offer for one or more consecutive increments of up to five (5) Business Days each, the initial length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree) to the extent (A) Parent and Purchaser shall have waived the Financing Proceeds Condition, (B) all of the Offer Conditions other than the Financing Proceeds Condition have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Expiration Date, but subject to the satisfaction or waiver of such conditions) and (C) the Debt Financing has not actually been received by Purchaser or Parent, and the lenders party to the Debt Commitment Letter have not definitively and irrevocably confirmed in writing to Parent and Purchaser that the Debt Financing in an amount sufficient (together with cash available to Parent) to consummate the Offer and the Merger will be available at the anticipated Acceptance Time on the terms and conditions set forth in the Debt Commitment Letter and subject only to the satisfaction of the Offer Conditions; and (z) if (A) the Financing Proceeds Condition has been satisfied or waived less than five (5) Business Days prior to the then-scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any Offer (including the then-scheduled expiration date of the Offer, any ) and (B) all of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are other Offer Conditions have been satisfied or waived at the then scheduled expiration of the Offer (other than those conditions that by their nature are to be satisfied at the Expiration Date, but subject to the satisfaction or waiver of such conditions), then Purchaser and Parent shall have a one-time right to extend the Offer pursuant to this sentence and such extension shall be for a period of up to five (5) Business Days; provided, however, that in no event shall Purchaser (i) be required to extend the Offer beyond the earliest to occur of (A) the Outside Date and (B) the valid termination of this Agreement in compliance with Article VII or (ii) be permitted to extend the Offer beyond the Outside Date without the prior written consent of the Company. Notwithstanding anything herein to the contrary, Purchaser shall, without the written consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof its staff, any rule or regulation of NASDAQ, or any other applicable Law, in each case, applicable to the Offer. The limitations regarding .
(d) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except for a termination of this Agreement permitted in accordance with the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in Section 7.1. In the event that this Agreement is terminated pursuant to Section 8.1(d7.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within two (2) Business Days of this Agreement. Subject such termination), irrevocably and unconditionally terminate the Offer, not acquire any Shares pursuant thereto, and cause any depositary acting on its behalf to promptly return in accordance with applicable Law all tendered Shares to the terms and conditions of registered holders thereof.
(e) On the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration commencement date of the Offer, subject Purchaser and Parent shall (i) file or cause to compliance be filed with the SEC, in accordance with Rule 14e-1(c) 14d-3 under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the related offer to purchase and the Shares pursuant to the Offer, the form of the related letter of transmittal and transmittal, the summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and together with any all exhibits, amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The ; and (ii) cause the Schedule TO and related Offer Documents will comply to be disseminated to holders of Shares in all material respects accordance with applicable federal securities laws Laws. The Company shall promptly furnish to Purchaser and Parent in writing all information concerning the Company and its stockholders that may be required by applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any other applicable lawsaction contemplated by this Section 1.1(e). ParentThe Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC, Offeror and Purchaser and Parent shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Each of Purchaser, Parent and the Company each agree agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Offeror will Purchaser and Parent further agree to take all steps necessary to cause the Offer Documents as so corrected (if applicable) 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 federal securities laws and Laws. Upon receipt of any other applicable laws. The Company and its written or oral comments by Purchaser, Parent or their counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, or any request from the SEC or its staff for amendments or supplements to the Offer Documents, Purchaser and Parent agree to (i) promptly provide the Company and its counsel with a copy of any such written comments or requests (or a description of any such oral comments or requests); (ii) provide the Company and its counsel a reasonable opportunity to comment on any proposed response thereto, and to give reasonable and good faith consideration to any such comments made by the Company and its counsel; (iii) provide the Company and its counsel an opportunity to participate with Purchaser, Parent or their counsel in any material discussions or meetings with the SEC or its staff; and (iv) provide the Company with copies of any written comments or responses submitted by Purchaser and Parent in response thereto.
(f) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, merger, issuer tender offer, exchange of shares or other like change with respect to Company Common Stock occurring on or after the receipt thereof. In date hereof and prior to Purchaser’s acceptance for payment of, and payment for, Company Common Stock tendered in the event that Offer, and such adjustment to the Offer is terminated or withdrawn by Offeror, Parent and Sub Price shall cause all tendered Shares to be returned provide to the registered holders of Company Common Stock the Shares represented same economic effect as contemplated by this Agreement prior to such action and shall as so adjusted from and after the date of such event, be the Offer Price; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to the Company Common Stock that is prohibited by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 terms of this Agreement).
(g) Subject in all respects to the other terms and conditions of this Agreement and the Offer Conditions, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics 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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following (and in any event no later than October 14, 2008) after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser shall (and Parent shall cause the OfferPurchaser to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares of common stockShares at the Offer Price, par value $0.005 per share, of the Company subject to: (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 i) there being validly tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the expiration date of the Offer and not withdrawn a Expiration Date that number of Shares which, together with any the number of Shares (if any) then owned of record by Parent or Subthe Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least ninety (90%) percent a majority of the Shares then outstanding (determined on a fully-fully diluted basis basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the "election of directors or upon the adoption of this Agreement and approval of the Merger (collectively, the “Minimum Condition"”), ; and (ii) the 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 satisfaction or, to the terms extent waivable by Parent or the Purchaser, waiver by Parent or the Purchaser, of the Commitments (as defined in said Section 4.2(d)) or 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 hereto. Offeror expressly reserves I.
(b) Subject to the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver satisfaction of the Minimum Condition and the satisfaction or, to the extent waivable by Parent or the Purchaser, waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall decrease (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e). In circumstances in which the stockholders of the Company do not have the right to seek remedies at law or equity, the obligations of Parent and the Purchaser under this Agreement are material to the Company’s execution of this Agreement and any failure by Parent or the Purchaser to comply with the terms of this Agreement shall enable the Company to seek all remedies available at law or equity to it and on behalf of the stockholders.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including without limitation the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), the other conditions and requirements set forth in Annex I. Parent and the Purchaser expressly reserve the right to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will the Purchaser shall not (i) decrease the price per Share Offer Price, (ii) change the form of consideration payable in the Offer, (iiiii) decrease reduce the maximum number of Shares to be purchased in the Offer, (iiiiv) impose amend or waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer in addition to those set forth in Annex I heretoin a manner materially adverse to the holders of Shares, or (ivvi) change extend the Offer in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (New York City time) on the date that is the later of (i) 20 Business Days following the commencement of the Offer or (ii) 45 calendar days following the first public announcement of this Agreement by Parent (in either case, the “Initial Expiration Date”) or, if the Offer has been extended in accordance with this Agreement, at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including without limitation the Minimum Condition and the other conditions and requirements set forth in any material respect adverse Annex I) have not been satisfied or, to the Companyextent waivable by the Parent or the Purchaser pursuant to this Agreement, waived by Parent or the Purchaser, the Purchaser shall (v) except as provided in and Parent shall cause the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (iPurchaser to) extend the Offer for successive periods of up to 20 Business Days each, the length of each such period to be determined by the Purchaser in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer beyond the Outside Date; provided, further, that the Purchaser shall not be required to extend the Offer after the Company delivers or is required to deliver to Parent a notice with respect to an Acquisition Proposal that has been received by the Company, the Company Subsidiaries, or any scheduled Company Representative, in accordance with Section 5.4(c), except to the extent that prior to the expiration date of the Offer the Acquisition Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Acquisition Proposal giving rise to such notice and, in each case, the Company Board has reconfirmed the Company Board Recommendation and the withdrawal or rejection of such Acquisition Proposal, and the reconfirmation of the Company Board Recommendation, has been publicly announced by the Company. The “Outside Date” shall be December 31, 2008 (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31“Initial Outside Date”); provided, 1998, however that if at any scheduled expiration date of the Offer, any all of the conditions to Offeror's obligation to accept for paymentthe Offer (other than either or both of the HSR Condition or the Governmental Approval Condition, and pay forregardless of whether the Minimum Condition is then satisfied) have been satisfied or, Shares (including, with respect to the Financing Conditionextent waivable by Parent or the Purchaser, waived by Parent and the Purchaser, as of the Initial Outside Date, the consummation of Outside Date shall be March 31, 2009 (the sale of “Extended Outside Date”). In addition, the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the U.S. Securities and Exchange Commission (the "“SEC"”) or its staff.
(f) If necessary to obtain sufficient Shares to reach the staff thereof applicable Short Form Threshold (without regard to Shares issuable upon the Offer. The limitations regarding the terms and conditions exercise of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated Top-Up Option or Shares tendered pursuant to Section 8.1(dguaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), the Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and Sub will each use its reasonable best efforts to take, or cause to be takenpay for, all actions and Shares that are validly tendered pursuant to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferOffer during such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(bg) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (and in any event within 24 hours of such termination) terminate the Offer and shall not acquire the Shares pursuant thereto. If the Offer is terminated by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase and Purchase, a form of the related letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents will comply in all material respects with applicable federal securities laws to be disseminated to holders of Shares, as and any other applicable lawsto the extent required by the Exchange Act. Parent, Offeror Parent and the Company each Purchaser, 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 Documents, if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will take all steps necessary respect or as otherwise required by applicable Law, and Parent and the Purchaser agree to cause the Offer Documents Documents, as so corrected corrected, 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 federal securities laws and any other applicable lawsthe Exchange Act. The Company and its counsel shall be given an a reasonable opportunity to review the Schedule TO and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt , and Parent and the Purchaser shall give due consideration to give the reasonable additions, deletions or changes suggested thereto by the Company and its counsel as much time prior to filing to so review counsel. In addition, Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel with copies of any comments Offeror written comments, and its shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt thereofof such comments, and any written or oral responses thereto. In the event that the Offer is terminated or withdrawn by Offeror, The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Sub the Purchaser shall cause all tendered Shares to be returned give due consideration to the registered holders of the Shares represented reasonable additions, deletions or changes suggested thereto by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Company and its counsel.
Appears in 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Imclone Systems Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs and be existing (a) through and shall not have been waived by Purchaser), Purchaser shall (i) of Annex I hereto, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of common stockthis Agreement; provided, par value $0.005 per sharehowever, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cashOffer. 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 Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (ix) the satisfaction of the condition that at the expiration of the Offer 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 that number of Shares which, when taken together with any Shares (if any) then owned by Parent or Subany of its Subsidiaries, represents at least ninety (90%) percent more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the "number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition"”), and (iiy) the receipt of cash proceeds of the Financing satisfaction (as defined in Section 4.2(dor waiver by Purchaser) 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 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 set forth in Annex I A hereto. Offeror Purchaser expressly reserves the right in its sole discretion to waive any of such condition conditions (including other than the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by no change may be made without the prior written consent of the Company in writing, Offeror will not (i) decrease which decreases the price per Share payable in the Offer, (ii) decrease changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those to, or modifies or amends, the conditions set forth in Annex I A hereto, (iv) change waives the conditions to the Offer in Minimum Condition or makes any material respect adverse to the Company, (v) except as provided other changes in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term terms of the Offer that are in a any manner adverse to the holders of Shares or, except as provided below, extends the Sharesexpiration date of the Offer. Notwithstanding the foregoing, Offeror subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, without and at the consent request of the CompanyCompany shall, extend the Offer (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer) for a period not to extend beyond July 31, 1998, if at or any subsequent scheduled expiration date date, if, at the scheduled expiration of the Offer, any of the conditions to Offeror's Purchaser’s obligation to accept for payment, payment and to pay for, for Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) tendered shall not be satisfied or waivedor, until such time as such conditions are satisfied or to the extent permitted by this Agreement, waived and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the U.S. Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. The limitations regarding Each extension of the terms Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer, as Offer set forth in the second preceding and the immediately preceding sentences, shall not Annex A hereto to be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreementsatisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and this Agreement, Offeror Parent shall cause Purchaser to) accept for payment , and pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated promptly after it is permitted to accept for paymentdo so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, and pay forif, pursuant to at the Offer as soon as practicable after expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to compliance applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer, Parent and Sub . The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate tendered in the Offer.
(b) As soon promptly as practicable on the date of the commencement of the Offer, Offeror Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer which will Offer. The Schedule TO shall contain the or incorporate by reference an offer to purchase and form forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any all amendments, supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Parent and Purchaser shall cause the Offer Documents will comply in all material respects with to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws Laws and any other applicable lawsrules and regulations promulgated thereunder. ParentParent and Purchaser, Offeror on the one hand, and the Company each agree to Company, on the other hand, shall promptly correct any information provided by it them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect. Offeror will take all steps necessary to , and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case case, as and to the extent required by applicable federal securities laws Laws and any other applicable lawsrules and regulations promulgated thereunder. The Company and its counsel shall be given an a reasonable opportunity to review and comment on upon the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt SEC and disseminated to give the Company holders of Shares. In addition, Parent and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel with any comments Offeror and its that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments, consult with the event that Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses.
(c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer is terminated (or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares in connection with any subsequent offering period) any such amounts as are required to be returned deducted and withheld with respect to the registered holders making of such payment under the Shares represented by Internal Revenue Code of 1986, as amended (the certificate “Code”), or certificates surrendered to the Exchange Agent (as defined in Section 3.3 under any provision of this Agreement)state, local or foreign Tax Law.
Appears in 2 contracts
Sources: Merger Agreement (Galderma Laboratories, Inc.), Merger Agreement (Collagenex Pharmaceuticals 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) of Annex I hereto, Parent shall or shall cause Sub toBuyer shall, as promptly as reasonably practicable following after the date hereofof this Agreement, but in no event later than five business days after the initial public announcement twenty-fifth (25th) Business Day following the date of this Agreement (unless another date is agreed in writing by the parties hereto) and, without the consent of the OfferCompany, not to be unreasonably withheld, conditioned or delayed, no earlier than the twentieth (20th) Business Day following the date of this Agreement, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as 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 obligations of Offeror Buyer to accept for payment payment, and to pay for for, any Shares validly tendered in and not properly withdrawn pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of satisfaction or waiver (to the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of extent permitted under 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 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 set forth in Annex I hereto(the “Offer Conditions”). Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend The date on which Buyer commences the Offer and is referred to make any other changes in as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is permitted hereunder and not prohibited by applicable Law) of the Offer Conditions, Buyer shall (and Parent shall cause Buyer to), at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within two (2) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) thereafter), pay (by delivery of funds to the depositary for the Offer) for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing”). The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of each Share pursuant to the first sentence of this Section 2.1(b) shall be paid (without interest and less applicable withholding Taxes) on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of, or conditions to, the Offer; provided, howeverthat, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Buyer shall not (and Parent shall cause Buyer not to):
(i) decrease waive or change the price per Share payable in Minimum Tender Condition (except to the Offer, extent contemplated under paragraph 1(a) of Annex I);
(ii) decrease the maximum number of Shares to be purchased in the Offer, Offer Consideration;
(iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, except as otherwise provided in this Agreement;
(vi) impose additional Offer Conditions or (vii) amend otherwise amend, modify or supplement any other term of the Offer Conditions or terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, ; or
(ivii) extend increase the Offer beyond any scheduled expiration Consideration by an increment of less than $0.10 per Share.
(d) The Offer shall initially expire at 9:00 a.m. (Eastern Time), or at such other time as the parties hereto may mutually agree, on the date that is fifty (50) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the initial scheduled expiration date being 20 business days Exchange Act) following the commencement of the Offer) for a period not Offer (unless another date is agreed in writing by the parties hereto); provided that in no event shall such expiration time occur prior to extend beyond July 31, 1998, if at any scheduled the date of the EGM (such initial expiration date and time of the Offer, any of the conditions “Initial Expiration Time”) or, if the Offer has been extended pursuant to Offeror's obligation to accept for payment, and pay for, Shares (including, in accordance with respect to the Financing ConditionSection 2.1(e), the consummation of date and time to which the sale of Offer has been so extended (the Senior Notes Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article VI, Buyer may or shall (in which case Parent shall cause Buyer to), as defined in Section 4.2(d)) shall not be satisfied or waivedapplicable, until such extend the Offer from time to time as such conditions are satisfied or waived follows:
(i) Buyer shall (and (iiParent shall cause Buyer to) extend the Offer for any the minimum period as required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof thereof, or Nasdaq, as applicable to the Offer. The limitations regarding ;
(ii) if, at the terms and conditions then-scheduled Expiration Time, any of the OfferOffer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is permitted under this Agreement or applicable Law), then Buyer shall (and Parent shall cause Buyer to) extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (Eastern Time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time, the Offer Condition set forth in paragraph 1(b) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer may extend the second preceding and the immediately preceding sentencesOffer on such occasion for periods of up to twenty (20) Business Days; provided, further, that (x) Buyer shall not be applicable in required to, and shall not without the event this Agreement is terminated prior written consent of the Company, extend the Offer to a date later than the Outside Date (as the Outside Date may be extended pursuant to Section 8.1(d6.2(b)) and (y) if the only remaining unsatisfied Offer Condition is the Minimum Tender Condition, Buyer shall not be required to extend the Offer on more than two (2) occasions in consecutive periods of this Agreement. Subject up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (Eastern Time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company);
(iii) Buyer may extend the Offer to such other date and time as may be mutually agreed by Parent and the Company in writing; or
(iv) Buyer may extend the Offer to the terms and conditions Business Day immediately following the date that is thirty (30) calendar days after the date of the Offer EGM or Subsequent EGM at which the Merger Resolutions are approved.
(f) Following the Acceptance Time, Buyer shall (and this Agreement, Offeror Parent shall accept for payment , cause Buyer to) (and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14e-1(c14d-11 promulgated under the Exchange Act of not less than ten (10) Business Days (calculated in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act). Subject In the event that prior to the expiration of the Subsequent Offering Period, Buyer or Parent has publicly announced its intention to, subject to the terms of this Agreement, effectuate the Asset Sale, Buyer shall (and conditions Parent shall cause Buyer to) (and the Offer Documents shall so indicate) extend the Subsequent Offering Period for at least five (5) Business Days to permit any remaining Minority Shareholders to tender their Shares in exchange for the Offer Consideration (such extension, the “Minority Exit Offering Period”). Notwithstanding anything to the contrary contained herein, in the event that promptly following the Expiration Time, Buyer or Parent has publicly announced its intention to, subject to the terms of this Agreement, effectuate the Mergers, Buyer shall not be required to provide a Subsequent Offering Period (or, for the avoidance of doubt, a Minority Exit Offering Period), but may do so if Buyer chooses.
(g) The Offer may not be terminated prior to the Initial Expiration Time or the then-scheduled Expiration Time (as the same may be extended pursuant to Section 2.1(e)) unless this Agreement is validly terminated pursuant to Article VI. If this Agreement is validly terminated pursuant to Article VI, Buyer shall (and Parent shall cause Buyer to) promptly (and in any event within twenty-four (24) hours following such valid termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement by Parent prior to the acceptance for payment and payment for Shares tendered pursuant to the Offer, Buyer shall (and Parent shall cause Buyer to) as promptly as practicable, and Sub will each use its reasonable best efforts in any event within three (3) Business Days of the termination, return, and shall cause any depositary acting on behalf of Buyer to takereturn, or cause to be takenin accordance with applicable Law, all actions and tendered Shares to do, or cause to be done, all things necessary, proper or advisable the registered holders thereof. Nothing in this Section 2.1(g) shall affect any termination rights under applicable laws and regulations to consummate the OfferArticle VI.
(bh) As soon as practicable on the date of the commencement of the OfferOffer Commencement Date, Offeror Parent and Buyer shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO”), which contains or incorporates by reference an offer to purchase and a related letter of transmittal and other appropriate ancillary offer documents required to be included therein (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments or supplements thereto and including exhibits thereto, the “Offer Documents"). The ”) and (ii) cause the Offer Documents will comply in all material respects with to be disseminated to holders of Shares to the extent required by applicable United States federal securities laws Laws and any other applicable lawsLaw. The Company shall furnish promptly to Parent and Buyer all information concerning the Company required by the Exchange Act and applicable Law, or as reasonably requested by Parent, Offeror to be set forth in the Offer Documents. Each of Parent and Buyer, on the one hand, and the Company each agree Company, on the other hand, agrees promptly to promptly correct any information provided by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that it shall have such information has become (or has become known to be) false or misleading in any material respect. Offeror will take all steps necessary Parent and Buyer shall use their reasonable best efforts to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities laws Laws and any other applicable lawsLaw. The Parent and Buyer shall give the Company and its counsel shall be given an a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Buyer shall give due consideration to all reasonable additions, deletions or changes to such documents (and any amendments thereto) suggested thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give by the Company and its counsel as much time prior to filing to so review counsel. Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Buyer shall provide the Company and its counsel with (A) any comments Offeror or other communications, whether written or oral, that Parent and its Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Bodies with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the responses of Parent and Buyer to those comments and to provide comments on those responses (and Parent and Buyer shall give due consideration to all reasonable additions, deletions or changes to such responses suggested by the Company and its counsel), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the SEC or other Governmental Bodies to the extent such participation is not prohibited by the SEC or other Governmental Bodies. The parties hereto agree that, notwithstanding the notice provisions of this Agreement, communications with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated Documents, including communications related to any SEC comments, may be made on behalf of each party by email through their respective counsel.
(i) Parent shall provide or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned provided to Buyer on a timely basis the funds necessary to purchase any Shares that Buyer becomes obligated to purchase pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Purchase Agreement (Stryker Corp), Purchase Agreement (Wright Medical Group N.V.)
The Offer. (a) Provided that nothing The Company shall have occurred that would result in a failure to satisfy any of commence the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, Offer as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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, practicable. The obligation of the Company (to commence 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 Offer and to accept for payment payment, and to pay for any Shares shares of WorldPort Common Stock tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission EXHIBIT D (the "SECOFFER CONDITIONS") or the staff thereof applicable to the Offer). The limitations regarding the terms and conditions of the Offer, As soon as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) reasonably practicable following execution of this Agreement. Subject to , the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror Company shall file with the SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on Schedule 14D-1 TO, including all exhibits thereto (together with all amendments and supplements thereto, the "SCHEDULE TO") with respect to the Offer which will Offer, the Merger and the other transactions contemplated hereby. The Schedule TO shall contain the or incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and form forms of the related letter of transmittal and summary advertisement any related documents (the Schedule TO, the Offer to Purchase and such other documents, together with any all supplements or amendments thereto and including exhibits thereto, collectively, the "Offer DocumentsOFFER DOCUMENTS"). The Heico and JOHCM shall each use their commercially reasonable efforts to ensure that (i) the Offer Documents will shall comply in all material respects with applicable federal securities laws the requirements of the Exchange Act, and any other applicable laws. Parent, Offeror and (ii) on the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary to cause the Offer Documents as so corrected to be date filed with the SEC and on the date first published, sent or given to WorldPort's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders of Sharesmake the statements therein, in each case as light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, Heico or JOHCM discovers any information relating to either party, or any of their respective Affiliates, officers or directors, that should be set forth in an amendment or supplement to the schedule to, so that the document will not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the party that discovers any misleading information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing the information shall be promptly filed with the SEC and, to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior law or regulation, disseminated to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders shareholders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)WorldPort.
Appears in 2 contracts
Sources: Joint Venture and Securityholders Agreement (Worldport Communications Inc), Joint Venture and Securityholders Agreement (Heisley Michael E Et Al)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereof, (but in no event later than five business days after the initial public announcement of the Offerexecution hereof), Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase for cash all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Stock at a price of not less than $10.50 17.50 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represents at least 80% of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer (including without limitation the Minimum Condition), accept for payment and pay for Shares tendered as soon as practicable after it is legally permitted to do so under applicable law, but in no event prior to January 3, 1996. The obligation obligations of Offeror Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 shall be subject only to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent Minimum Condition 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 set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to waive any such condition (including the Minimum Conditionthis Agreement, provided that no such waiver of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I A hereto, (iv) change . Without the conditions to the Offer in any material respect adverse to written consent of the Company, (v) except as provided in Purchaser shall not decrease the next sentenceOffer Price, extend decrease the Offernumber of Shares sought, (vi) change the form of consideration payable to be paid in the Offer Offer, or (vii) amend any other term condition of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding Shares (other than with respect to the foregoingMinimum Condition or insignificant changes or amendments) without the written consent of the Company; PROVIDED, Offeror mayHOWEVER, that if prior to the initial scheduled expiration date of the Offer the Company shall have received a Higher POL Offer (as defined in Section 6.13 below) that the Company intends to accept, then at the Company's request Purchaser shall extend the Offer for fifteen business days in order to facilitate the consummation of such Higher POL Offer; and PROVIDED, FURTHER, that if on the initial scheduled expiration date of the Offer (as it may be extended) all conditions to the Offer shall not have been satisfied or waived, the Offer may be extended from time to time until February 1, 1996 without the consent of the Company. In addition, (i) extend the Offer beyond any scheduled expiration date (Price may be increased and the initial scheduled expiration date being 20 business days following commencement Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Company. Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend terminate the Offer for any period required by any rule, regulation, interpretation or position upon termination of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerterms.
(b) As soon as practicable on the date of the commencement of the OfferOffer is commenced, Offeror Parent and Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents")) with respect to the Offer. The Offer Documents will comply in all material respects with the provisions of applicable federal Federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's shareholders, shall not contain any other 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 Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and Purchaser further agrees to 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 Federal securities laws. ParentEach of Parent and Purchaser, Offeror on the one hand, and the Company each agree Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect. Offeror will respect and Purchaser further agrees to 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 as and to the extent required by applicable federal Federal securities laws and any other applicable laws. The Company and its counsel shall be given an the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof Schedule 14D-1 before it is filed with the SEC; provided that Offeror will attempt . In addition, Parent and Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel in writing with any comments Offeror and its Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Psicor Inc), Merger Agreement (Baxter International Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX, and that no event shall have occurred and be continuing that would result in a the failure to satisfy be satisfied of any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoA, Parent Purchaser shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) a tender offer the Offer no earlier than September 22, 2010.
(as amended from time to time in accordance with this Agreement, the "Offer"b) to purchase all The initial expiration date 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 midnight (New York City time) on the later of (x) October 20, 2010 and (y) the date that is 20 business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Date” and any expiration time and date established pursuant to an extension of the Offer as so extended, also an “Expiration Date”).
(c) The obligations of Purchaser to commence the Offer and accept for payment, and pay for, any Public Shares tendered pursuant to the Offer are subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I heretoA and (ii) the non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Public Shares which constitutes at least a majority of the outstanding Public Shares (assuming the exercise of all outstanding Stock Options having an exercise price less than the Offer Price, and excluding from such calculation any Rollover Shares) (the “Minimum Condition”). Offeror The conditions to the Offer set forth in Annex A are for the sole benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances (including any action or inaction by Purchaser; provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition. The failure of Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Purchaser expressly reserves the right in its sole discretion (i) to increase the Offer Price and (ii) to waive any such condition (including to the Minimum ConditionOffer or modify the terms of the Offer, provided except that no such waiver of the Minimum Condition shall decrease may not be waived and that, without the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions consent of the Offer; providedCompany, however, that unless -------- ------- previously approved by the Company in writing, Offeror will Purchaser shall not (iA) decrease reduce the price per Share payable in number of Public Shares subject to the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (vB) except as provided in Section 4.4, reduce the next sentence, extend the OfferOffer Price, (viC) add to the conditions set forth in Annex A or modify any condition set forth in Annex A in any manner adverse to the holders of Public Shares or (D) change the form of consideration payable in the Offer or Offer.
(viie) amend any other term of the Offer Purchaser may in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, its discretion (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 for one or more consecutive increments of not more than ten business days following commencement of the Offer) for a period not to extend beyond July 31, 1998each, if at any otherwise scheduled expiration date Expiration Date of the Offer, Offer any of the conditions to Offeror's Purchaser’s obligation to accept for payment, and pay for, purchase Public Shares (including, with respect to in the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall Offer are not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any the minimum 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. The limitations regarding the terms and conditions , or (iii) make available a “subsequent offering period” in accordance with Rule 14d-11 of the OfferExchange Act.
(f) Purchaser shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, as set forth in and, without limiting the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions generality of the Offer and this Agreementforegoing, Offeror Purchaser shall accept for payment payment, and pay for, all Public Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept promptly following the acceptance of such Public Shares for payment, and pay for, payment pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and subject to the conditions of the OfferOffer and this Agreement. This paragraph shall not be deemed to impair, Parent and Sub will each use its reasonable best efforts to take, limit or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading otherwise restrict in any material respect. Offeror will take all steps necessary manner the right of Purchaser to cause the Offer Documents as so corrected terminate this Agreement pursuant 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 federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Article IX.
Appears in 2 contracts
Sources: Share Exchange Agreement (Res Care Inc /Ky/), Share Exchange Agreement (Res Care Inc /Ky/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result --------- been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 7.1, as promptly as practicable following the date hereof, (but in no event later than five business days after the initial public announcement of the Offerexecution 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 (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all shares of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Stock at a price of not less than $10.50 17.85 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"), subject to the conditions set forth in Annex A hereto. The obligation Company shall not tender Shares held by it or by any of Offeror its subsidiaries pursuant to the Offer. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of the Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 shall be subject only to the terms of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I A hereto.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex A hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition The Purchaser shall not decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) Price or decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares sought, amend the conditions to be purchased the Offer set forth in the Offer, (iii) Annex A or impose conditions to the Offer in addition to those set forth in Annex I heretoA, (iv) change without the conditions to the Offer in 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 (vii) amend any other term prior written consent of the Offer in a manner adverse Company (such consent to be authorized by the holders Board of Directors of the SharesCompany or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror the Purchaser shall be entitled to and shall, and Parent agrees to cause the Purchaser to, extend the Offer at any time up to 40 days in the aggregate, in one or more periods of not more than 10 business days, if at the initial expiration date of the Offer, or any extension thereof, any condition to the Offer is not satisfied or waived; provided however, that the Purchaser shall not be required to extend the Offer as provided in this sentence unless (i) each such condition is reasonably capable of being satisfied and (ii) the Company is in material compliance with all of its covenants under this Agreement after the Purchaser shall have given the Company five business days prior written notice of any such non-compliance. In addition, without limiting the foregoing, the Purchaser may, without the consent of the Company, (iA) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 for up to an additional 40 days, in one or more periods of not more than 10 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998days, if at any scheduled condition to the Offer is not satisfied or waived and (B) if, on the expiration date of the Offer, the Shares validly tendered and not withdrawn pursuant to the Offer are sufficient to satisfy the Minimum Condition (as defined in Annex A hereto) but equal less than 90% of the outstanding Shares, extend the Offer on one occasion for up to 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 Offeror's obligation to accept for paymentthe Offer (other than in the case of paragraph (a) of Annex A hereto the occurrence of any statute, and pay forrule, Shares (includingregulation, with respect to the Financing Conditionjudgment, order or preliminary or permanent injunction making illegal or prohibiting the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)Offer) shall that subsequently may not be satisfied or waivedduring any such extension of the Offer. In addition, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period Price may be increased and the Offer may be extended to the extent required by any rule, regulation, interpretation or position law in connection with such increase in each case without the consent of the Company.
(c) As soon as practicable on the date the Offer is commenced, Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain (together with all amendments and supplements thereto and including the offer exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 shall include, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will 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 other 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 the 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 federal securities laws. Parent, Offeror Each of Parent and the Company each agree to Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on upon the Offer Documents Schedule 14D-1 (and shall provide any amendments thereto comments thereon as soon as practicable) prior to the filing thereof with the SEC; provided that Offeror will attempt to give . In addition, Parent and the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel in writing with any comments Offeror and its that Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated of such comments and with copies of any written responses and telephonic notification of any verbal responses by Parent, Purchaser or withdrawn by Offeror, their counsel.
(d) Parent and Sub shall provide or cause all tendered Shares to be returned provided to Purchaser all of the funds necessary to purchase any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Merger Agreement (Societe Nationale D Exploitation Indus Des Tabacs Et Allumet), Merger Agreement (Consolidated Cigar Holdings Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article IX, and none of the conditions events set forth in paragraphs (a), (b), (c) through (ito the extent performance is required theretofore), (e) and (f) of Annex I hereto, Parent hereto shall or shall cause Sub tohave occurred and be continuing, as promptly as practicable following and in any event within ten (10) Business Days after the date hereof, but in no event later than five business days after the initial public announcement of the Offer, MergerSub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an 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"), Shares 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 shall be validly tendered in accordance with the terms Price, and shall, upon commencement of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 such other terms as Parent and but after affording the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") reasonable opportunity to review and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Conditioncomment thereon, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the file a Tender Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, Statement on Schedule TO with respect to the Financing ConditionOffer (together with all amendments and supplements thereto and including exhibits thereto, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)“Schedule TO”) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of all other necessary documents with the Securities and Exchange Commission (the "“SEC"”) or and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the staff thereof applicable Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall use its commercially reasonable efforts to consummate the Offer. The limitations regarding , subject to the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreementthereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”), MergerSub shall, as soon as possible after the expiration of the Offer and this Agreement(or, Offeror shall accept for payment if applicable, and pay forthe expiration of the “initial offering period”), all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay forfor (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to the Offer as soon as practicable after expiration of and not withdrawn (the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the first date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits theretoacceptance for payment, the "Offer Documents"“Acceptance Date”). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror MergerSub and the Company each agree promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and MergerSub shall take all steps necessary to cause the Offer Documents Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Sharesshares, in each case as and to the extent required by applicable federal Federal securities laws and any other applicable laws. The Company and its counsel MergerSub shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company with (in writing, if written), and shall consult with the Company regarding, any comment (written or oral) that may be received by MergerSub or its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents as promptly as practicable after the receipt thereof. In The Company and its counsel shall be given a reasonable opportunity to review and comment on any such written and oral comments and proposed responses.
(b) Without the event prior written consent of the Company, MergerSub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares. MergerSub may, in its sole and absolute discretion, increase the price per Company Common Share payable in the Offer without the consent of the Company. The initial expiration date of the Offer shall be the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act). MergerSub expressly reserves the right to waive any condition to the Offer (provided that any waiver of the Minimum Tender Condition shall require the prior written consent of the Company) or modify the terms of the Offer, subject to compliance with the Exchange Act and the first sentence of this subsection (b); provided that all such modifications to the terms of the Offer (other than a modification to increase the Offer Price or to waive a condition to the Offer) shall not, in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification. Except as expressly provided in this subsection (b), MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. Notwithstanding the foregoing, MergerSub shall extend the Offer at any time, and from time to time: (1) if at the then-scheduled expiration date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; provided that any extension shall be in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer; or (3) if all of the Tender Offer Conditions are satisfied or waived, and Company Common Shares have been accepted for payment, but the number of Company Common Shares acquired by MergerSub (together with other Company Common Shares owned of record by the Buyer Parties or any of their Affiliates) represent less than 90% of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, for an aggregate period of not more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any date on which the Offer is terminated or scheduled to expire, MergerSub will accept for payment and pay for all Company Common Shares validly tendered and not validly withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (Offer as defined in Section 3.3 of this Agreement)soon as practicable after such date.
Appears in 2 contracts
Sources: Merger Agreement (Centro Properties LTD), Merger Agreement (New Plan Excel Realty Trust Inc)
The Offer. (a) Provided that nothing As long as (i) this Agreement shall not have been terminated in accordance with its terms and (ii) none of the events or conditions described in Exhibit 1 shall exist or shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoand be continuing, Parent shall or shall cause Merger Sub toshall, as promptly as practicable following the date hereof, but and in no event later than five ten (10) business days after the initial public announcement of the Offerdate hereof, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 0.10 per shareshare (the “Common Stock”), of the Company (the "“Shares" or "Common Stock"), ”) at a price of not less than $10.50 37.00 per ShareShare in cash, net to the seller but subject to any required withholding of Taxes, subject to the conditions set forth in cash. For purposes Exhibit 1 and the requirements of this Article IAgreement (such tender offer and price as they may from time to time be amended in accordance with this Agreement, the party “Offer” and the “Offer Price”, respectively). Subject to Merger Sub’s right to extend the Offer as permitted by this Agreement, the Offer shall initially expire at midnight (New York City time) on the date which makes is 20 business days after the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act). If any of the conditions set forth in Exhibit 1 are not satisfied or waived by Merger Sub as of any then scheduled expiration time for the Offer, whether Parent or Subthen Merger Sub may, shall be referred from time to as time in its sole discretion, extend the "Offeror." The obligation of Offeror to accept expiration time for payment and to pay for any Shares tendered in the Offer shall be subject only in maximum increments of 10 business days to no later than June 30, 2006 (the “Outside Date”); provided, however, that notwithstanding the foregoing (i) the condition that there shall be validly tendered in accordance with the terms of Merger Sub may extend the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with for any Shares then owned period required by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing any applicable Law (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(d5.1(i)) or 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 (iiiii) after acceptance for payment of Shares for a further period of time not to exceed twenty (20) business days by means of a subsequent offering period under Rule 14d-11 under the other conditions set forth in Annex I heretoExchange Act. Offeror Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in amend or modify the terms and conditions of the OfferOffer in its sole discretion; provided, however, that unless -------- ------- previously approved by notwithstanding the Company in writingforegoing Merger Sub may not waive the Minimum Condition, 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 any conditions to the Offer in addition to other than those set forth in Annex I heretoExhibit 1, (iv) change modify the conditions on Exhibit 1 (other than to waive any conditions on Exhibit 1 to the extent permitted by this Agreement), decrease the Offer in any material respect adverse to the CompanyPrice below $37.00 per Share, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer, reduce the number of Shares sought in the Offer, extend the Offer other than as permitted by the immediately preceding sentence or (vii) amend any other term terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, in each case without the prior written consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding On the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject subject to the terms and conditions of the Offer and this Agreement, Offeror Merger Sub shall accept pay for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. Merger Sub may, subject at any time, transfer or assign to compliance with Rule 14e-1(c) under one or more Subsidiaries of Parent the Exchange Act. Subject right to purchase all or any portion of the terms and conditions of Shares tendered pursuant to the Offer, Parent and but any such transfer or assignment shall not relieve Merger Sub will each use of its reasonable best efforts to take, obligations under this Agreement or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable . Whenever this Agreement requires Merger Sub to take any action, such requirement shall be deemed to include an undertaking on the date part of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent Parent that it shall have become false or misleading in any material respect. Offeror will cause Merger Sub to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such action.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereof, (but in any event no event later than five the tenth (10th) business days day after the initial public announcement of the Offer, execution of this Agreement by Parent and the Company) Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all shares of the issued and outstanding shares of common stockCommon Stock, par value $0.005 .001 per share, of the Company share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company, at a purchase price per Share of not less than $10.50 per Share, 4.3545 net to the seller in cash. For purposes of this Article Icash (such price per Share, the party which makes or such higher price per Share, if any, as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represent at least two-thirds of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation obligations of Offeror Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 shall be subject only to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent Minimum Condition 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 set forth in Annex I A hereto. Offeror The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right in its sole discretion to waive amend any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, provided that unless -------- ------- previously approved without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company in writingor a duly authorized committee thereof) Purchaser shall not amend or waive the Minimum Condition, Offeror will not (i) decrease the price per Share payable in Offer Price or decrease the number of Shares sought, change the form of consideration to be paid pursuant to the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I A hereto, (iv) change the conditions to or amend any other term or condition of the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoingShares or, Offeror mayexcept as provided below in this Section 1.1(a), without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction or waiver of the Offer conditions as of any expiration date, Offeror shall Purchaser will accept for payment , and pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after it is legally permitted to do so by applicable law. Notwithstanding the foregoing, Purchaser shall be entitled to extend the Offer, without the consent of the Company, if at the initial expiration of the Offer, subject which will be 20 business days following commencement of the Offer, or any extension thereof, any condition to compliance with the Offer is not satisfied or waived, and at the Company's request, Purchaser shall extend the Offer from time to time, until June 19, 2001 if at the then scheduled expiration date all of the Offer conditions have not been satisfied or waived as permitted by this Agreement. Any extension of the Offer pursuant to this Section 1.1(a) shall not, without the written consent of the Company, exceed the number of days that Purchaser reasonably believes will be necessary so that the Offer conditions will be satisfied. In addition, Purchaser may, without the consent of the Company, extend any then scheduled expiration date of the Offer for any period required by applicable rules, regulations, interpretations or positions of the SEC or the staff thereof applicable to the Offer or for any period required by applicable law. If the Minimum Condition has been satisfied and all other conditions to the Offer have been satisfied or waived but fewer than 90% of the Shares have been validly tendered and not withdrawn as of any expiration date, Purchaser shall accept and purchase all of the Shares tendered in the initial offer period and may provide for a subsequent offering period (as contemplated by Rule 14e-1(c) 14d-11 under the Exchange Act) as long as providing for the subsequent offering period does not require the extension of the initial offer period under applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"), which subsequent offering period shall not exceed 20 business days. Subject In addition, the Offer Price may be increased and the Offer may be extended to the terms and conditions extent required by law in connection with such increase in each case without the consent of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany.
(b) As soon as practicable on the date of the commencement of the OfferOffer is commenced, Offeror Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO"). The Schedule TO will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Parent and Purchaser represent that the Offer Documents will 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 other 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 Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent and Purchaser further agrees to 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 federal securities laws. ParentEach of Parent and Purchaser, Offeror on the one hand, and the Company each agree Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and each of Parent and Purchaser further agrees to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt . In addition, Parent and Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel in writing with any comments Offeror and its or other communications that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated of such comments or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)other communications.
Appears in 2 contracts
Sources: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Wolters Kluwer Us Corp)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following (and in any event within ten Business Days after the date hereof), but in no event later than five business days after the initial public announcement of the OfferPurchaser shall commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all the outstanding Shares at the Offer Price. The consummation 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 and the "Offeror." The obligation of Offeror the Purchaser to accept for payment and to pay for any Shares tendered pursuant to the Offer, shall be subject to: (i) there being validly tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the expiration date of the Offer and not withdrawn a Expiration Date that number of Shares which, together with any the number of Shares (if any) then owned of record by Parent or Subany of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole voting power, represents at least ninety (90%) percent a majority of the Shares then outstanding (determined on a fully-fully diluted basis basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the "adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (collectively, the “Minimum Condition"), ”) and (ii) the receipt of cash proceeds satisfaction, or waiver by the Purchaser, 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 such other terms as Parent conditions and the Company shall agree or as are not materially more onerous than as requirements set forth in Annex I. The conditions and requirements to the Commitments (the "Financing Condition") and (iii) the other conditions Offer set forth in Annex I heretoare for the sole benefit of the Purchaser and may be asserted by the Purchaser in its reasonable judgment regardless of the circumstances giving rise to such condition or may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.1.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly. Offeror The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- otherwise contemplated by this Agreement or as previously approved by the Company in writing, Offeror will the Purchaser shall not (i) decrease the price per Share Offer Price, (ii) change the form of consideration payable in the Offer, (iiiii) decrease reduce the maximum number of Shares to be purchased in the Offer, (iiiiv) impose amend or waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer in addition to those set forth in Annex I heretoin a manner materially adverse to the holders of Shares or (vi) extend the Expiration Date in a manner other than in accordance with this Agreement. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (ivincluding any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(d) change Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (New York City time) on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in any material respect adverse to Annex I) have not been satisfied, or, where permitted by applicable Law and this Agreement, waived by the CompanyPurchaser, the Purchaser shall (v) except as provided in and Parent shall cause the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (iPurchaser to) extend the Offer beyond on one or more occasions, for successive periods of up to 20 Business Days each, until the satisfaction or, where permitted by applicable Law and this Agreement, waiver by the Purchaser of such conditions. In addition, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any scheduled expiration date period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the United States Securities and Exchange Commission (the initial scheduled expiration “SEC”) or its staff. Notwithstanding anything to the contrary in this Agreement, the Purchaser shall not be required to extend the Offer for any reason beyond April 30, 2012 (the “Outside Date”); provided however that if, as of such date, all conditions set forth in Annex I have been satisfied other than either (i) obtaining the Required Governmental Approval or (ii) both obtaining the Required Governmental Approval and satisfying the Minimum Condition, then either Parent or the Company may, in its sole discretion and pursuant to written notice to the other party no later than two Business Days prior thereto and no earlier than five Business Days prior thereto, extend such date being 20 business for up to (but no more than) two successive 30 calendar day periods starting on May 1, 2012 (each such extension to be 30 days following commencement and, thereafter, the last date of each such additional thirty-day period shall for all purposes of this Agreement be the “Outside Date”) solely to satisfy such condition(s); provided further that in no event shall the Outside Date, as it may be extended pursuant to this Section 1.1(e), extend past June 30, 2012. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 7 hereof.
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to the exercise of the Offer) Top-Up Option), the Purchaser may, in its sole discretion, provide for a period not “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of up to extend beyond July 31, 1998, if at any scheduled expiration date 20 Business Days. Subject to the terms and conditions of this Agreement and the Offer, any of the conditions to Offeror's obligation to Purchaser shall immediately accept for payment, and pay for, all Shares (including, with respect that are validly tendered pursuant to the Financing Condition, Offer during such “subsequent offering period.” The Offer Documents will provide for the consummation possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waivedCompany, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event except if this Agreement is terminated pursuant to Section 8.1(d) Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall promptly (and in any event no later than the end of the next Business Day following such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement. Subject Agreement is terminated prior to the terms and conditions purchase of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of in the Offer, subject the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to compliance return, in accordance with Rule 14e-1(c) under the Exchange Act. Subject applicable Law, all tendered Shares to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
(bh) As soon as practicable on the date of the commencement of the Offer, Offeror the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase and Purchase, a form of the related letter of transmittal and a form of summary advertisement (collectively, together with any amendments, supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Purchaser agrees to cause the Offer Documents will comply in all material respects with applicable federal securities laws to be disseminated to holders of Shares, as and any other applicable lawsto the extent required by the Exchange Act. Parent, Offeror The Company shall promptly furnish to Parent and the Purchaser in writing all information concerning the Company each that may be required by applicable securities Laws or reasonably requested by Parent or the Purchaser for inclusion in the Schedule TO and the Offer Documents. The Purchaser, 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 Documents, if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary respect or as otherwise required by applicable Law, and the Purchaser agrees to cause the Offer Documents Documents, as so corrected corrected, 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 federal securities laws and any other applicable lawsthe Exchange Act. The Company and its counsel shall be given an a reasonable opportunity to review the Schedule TO and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt , and the Purchaser shall give due consideration to give the reasonable additions, deletions or changes suggested thereto by the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under counsel. In addition, the circumstances. Offeror will Purchaser shall provide the Company and its counsel with copies of any comments Offeror written comments, and shall inform them of any oral comments, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub Purchaser shall cause all tendered Shares to be returned give due consideration to the registered holders of the Shares represented reasonable additions, deletions or changes suggested thereto by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Company and its counsel.
Appears in 2 contracts
Sources: Merger Agreement (Interclick, Inc.), Merger Agreement (Yahoo Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with its terms and none of the conditions set forth in paragraphs (a) through (i) of Annex I heretoANNEX A hereto shall have occurred or be continuing, Parent shall or shall cause Merger Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offerand Merger Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (the Offer as amended from time to time in accordance with this Agreement, promptly as reasonably practicable after 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 cashdate hereof. 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 Merger Sub to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, and without giving effect to the exercise of the option pursuant to the Stock Option Agreement, shall be validly tendered in accordance with constitute a majority of the terms then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding Options or Warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer but excluding any such holders of Options or Warrants who have agreed in writing to accept the cash payments described in Section 2.7 hereof upon termination of their Options or Warrants as described in Section 2.7 hereof) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), ) and (ii) the receipt of cash proceeds there shall not have occurred or be continuing any 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 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 set forth in Annex I ANNEX A hereto. Offeror Parent expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Per Share payable in the OfferAmount, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved no change may be made by Parent without the prior written consent of the Company in writing, Offeror will not which (iA) decrease decreases the price per Per Share Amount or changes the form of consideration payable in the Offer, (iiB) decrease waives the Minimum Condition, (C) reduces the maximum number of Shares to be purchased in the Offer, (iiiD) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 ANNEX A hereto or (viiE) amend amends any other term of the Offer in a any other manner materially adverse to the holders of the SharesShares or the likelihood of the consummation of the Merger. Notwithstanding the foregoing, Offeror Merger Sub may, without the consent of the Company, (i) extend the Offer beyond any the scheduled expiration date date, which shall be twenty (20) Business Days following the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998if, if at any the scheduled expiration date of the Offer, any of the conditions to OfferorMerger Sub's obligation to accept for payment, and pay for, payment Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than ten (10) Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions (including the Minimum Condition) to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer totals less than ninety percent (90%) of the issued and outstanding Shares on a fully diluted basis. Following expiration of the Offer, the Purchaser may, in its sole discretion, provide a subsequent offering period (a "Subsequent Offering Period") in accordance with Rule 14d-11 under the Exchange Act. The limitations regarding Per Share Amount shall, subject to any applicable withholding of Taxes, be $1.00 net to the sellers of the Shares in cash, upon the terms and subject to the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment , and pay for, for all Shares validly tendered and not withdrawn pursuant as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the Offer that Offeror becomes obligated to accept for payment, applicable rules of the SEC and pay for, pursuant to the Offer as soon as practicable after expiration terms and conditions of the Offer, subject Merger Sub expressly reserves the right to delay payment for Shares for the sole purpose of complying in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. Subject If the payment equal to the terms and conditions Per Share Amount in cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the OfferCompany, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of such amount to a Person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Merger Sub that such Taxes either have been paid or are not applicable. If this Agreement is terminated by Parent or by the Company, Parent shall cause Merger Sub to, and Merger Sub will each use its reasonable best efforts to takeshall, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate terminate promptly the Offer.
(b) As soon promptly as reasonably practicable on the date of the commencement of the Offer, Offeror Parent shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer which will Offer. The Schedule TO shall contain the or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and form forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Each of Parent, Offeror Merger Sub and the Company each agree agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will , and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Parent and Merger Sub shall give the Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof such documents being filed with the SEC; provided that Offeror will attempt SEC or disseminated to give the Company holders of Shares. Parent and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Merger Sub shall provide the Company and its counsel with copies of any comments Offeror and its Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the formulation of the response of Parent or Merger Sub to such comments.
(c) Subject to applicable law and the rules and regulations of The Nasdaq Stock Market, Inc. and/or the OTC Bulletin Board, in the event that that, following a Subsequent Offering Period, if any, the Offer is terminated or withdrawn by OfferorPurchaser has acquired less than ninety percent (90%) of the Shares, Parent and Sub shall cause all tendered Shares but not less than seventy-five percent (75%) of the Shares, the parties have entered into a Stock Option Agreement (the "Stock Option Agreement"), pursuant to be returned which the Company has granted to the registered holders Purchaser an option to purchase that number of Shares equal to the number of Shares that, when added to the number of Shares owned by the Purchaser and its affiliates immediately following expiration of the Subsequent Offering Period, shall constitute ninety percent (90%) of the Shares represented by then outstanding on a fully diluted basis.
(d) Parent shall provide or cause to be provided to Merger Sub on a timely basis the certificate or certificates surrendered funds necessary to accept for payment, and to pay for, any and all Shares that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article VII, and (ii) all of the conditions set forth in paragraphs (ac)(i) through (ic)(vi) of Annex I heretoshall then be satisfied (in the case of (x) paragraphs (c)(ii) through (c)(v), giving effect only to representations and warranties made as of dates prior to such time and (y) paragraph (c)(vi), giving effect only to agreements and covenants that the Company is required to comply with or to perform prior to such time) or waived by Parent shall or shall cause Sub toMerger Sub, as promptly as practicable following (and in any event within ten Business Days) after the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the OfferMerger Sub shall (and Parent shall cause Merger Sub to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all the outstanding Shares at the Offer Price.
(b) Subject to the satisfaction of the issued Minimum Condition and outstanding shares of common stockthe satisfaction, par value $0.005 per shareor waiver by Merger Sub, 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 shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I heretoI, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable, but in any event no later than three Business Days, after the Expiration Date. Offeror The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- otherwise expressly provided in this Agreement or as previously approved by the Company in writing, Offeror will Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) decrease the price per Share Offer Price, (ii) change the form of consideration payable in the Offer, (iiiii) decrease reduce the maximum number of Shares to be purchased in the Offer, (iiiiv) impose amend, modify or waive the Minimum Condition, (v) add any additional conditions to those set forth on Annex I or amend any of the conditions and requirements to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect a manner adverse to the Company, (v) except as provided in the next sentence, extend the Offerholders of Shares, (vi) change extend the form of consideration payable Expiration Date in the Offer a manner other than in accordance with this Agreement or (vii) amend otherwise amend, modify or supplement any other term of the terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding .
(d) Unless extended in accordance with the foregoingterms of this Agreement, Offeror may, without the consent Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement of the CompanyOffer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date to which the Offer has been so extended (ithe Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with the terms of this Agreement, the “Expiration Date”). If on any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions set forth in Annex I) have not been satisfied, or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement for successive periods of the Offer) for a period not up 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 (including, with respect to the Financing Conditionten Business Days each, the consummation length of each such period to be determined by Parent in its sole discretion, in order to permit the sale satisfaction of the Senior Notes (as defined in Section 4.2(d)) such conditions; provided, however, that Merger Sub shall not be satisfied or waivedrequired to, until such time as such conditions are satisfied or waived and shall not without the Company’s prior written consent, extend the Offer beyond August 20, 2015 (ii) the “Outside Date”). In addition, Merger Sub shall extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the U.S. Securities and Exchange Commission (the "“SEC"”) or its staff.
(e) Merger Sub shall not terminate the staff thereof applicable Offer prior to any scheduled Expiration Date without the Offer. The limitations regarding the terms and conditions prior written consent of the OfferCompany, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event except if this Agreement is terminated pursuant to Section 8.1(dArticle VII. If this Agreement is terminated pursuant to Article VII, Merger Sub shall (and Parent shall cause Merger Sub to) of promptly, irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement. Subject Agreement is terminated prior to the terms and conditions purchase of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of in the Offer, subject Merger Sub shall promptly (and in any event within two Business Days) return, and shall cause any depositary acting on behalf of Merger Sub to compliance return, in accordance with Rule 14e-1(c) under the Exchange Act. Subject applicable Law, all tendered Shares to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
(bf) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase and Purchase, a form of the related letter of transmittal and a form of summary advertisement (collectively, together with any supplements or amendments thereto and including exhibits theretosupplements, the "“Offer Documents"”). The Parent and Merger Sub agree to cause the Offer Documents will comply in all material respects with applicable federal securities laws to be disseminated to holders of Shares, as and any other applicable lawsto the extent required by the Exchange Act. ParentParent and Merger Sub, Offeror on the one hand, and the Company each Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary respect or as otherwise required by applicable Law, and Parent and Merger Sub agree to promptly cause the Offer Documents Documents, as so corrected corrected, 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 federal securities laws and any other applicable lawsthe Exchange Act. The Company and its counsel shall be given an a reasonable opportunity to review the Schedule TO and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt , and Parent and Merger Sub shall give due consideration to give the reasonable additions, deletions or changes suggested by the Company and its counsel as much time prior to filing to so review counsel. In addition, Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Merger Sub shall provide the Company and its counsel with copies of any comments Offeror written comments, and its shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Merger Sub shall give due consideration to the receipt thereofreasonable additions, deletions or changes suggested by the Company and its counsel. In the event that The date and time at which Merger Sub accepts for payment Shares tendered and not properly withdrawn pursuant to the Offer is terminated referred to in this Agreement as the “Acceptance Time.”
(g) Parent shall provide or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned provided to Merger Sub on a timely basis the funds necessary to purchase any Shares Merger Sub becomes obligated to purchase pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article VIII hereof and none of the conditions events set forth in paragraphs (a) through (i) of Annex I hereto, Parent hereto (the "Tender Offer Conditions") shall or shall cause Sub tohave occurred, as promptly as practicable following the date hereof, but in no event later than five the fifth business days after day from the initial public announcement date of this Agreement, the OfferPurchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of outstanding Shares at the issued Offer Price and outstanding shares of common stock, par value $0.005 per share, of shall file all necessary documents with the Company Securities and Exchange Commission (the "Shares" or SEC"Common Stock) in connection with the Offer (the "Offer Documents"), 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 the Purchaser to accept for payment and to or pay for any Shares tendered in the Offer shall pursuant thereto will be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves .
(b) Without the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition Company, Purchaser shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I heretothe Tender Offer Conditions, (ivii) change modify or amend the conditions to the Tender Offer in 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 Conditions or (vii) amend any other term of the Offer in a manner adverse to the holders of Common Shares, (iii) reduce the Sharesnumber of Shares subject to the Offer, (iv) reduce the Offer Price, (v) except as provided in the following sentence, extend the Offer, if all of the Tender Offer Conditions are satisfied or waived, or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Offeror Purchaser may, without the consent of the Company, extend the Offer at any time, and from time to time, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any the then scheduled expiration date of the Offer, Offer any of the conditions to OfferorPurchaser's obligation to accept for payment, payment and pay for, for all Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be have been satisfied or waived, until such time as such conditions are satisfied or 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") SEC or the its staff thereof applicable to the Offer. The limitations regarding ; or (iii) if all Tender Offer Conditions are satisfied or waived but the terms and conditions number of Common Shares tendered is at least equal to 70%, but less than 90%, of the Offerthen outstanding number of Common Shares, for an aggregate period of not more than 10 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i) or (ii) of this sentence. So long as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant in effect, the Offer has been commenced and the Tender Offer Conditions have not been satisfied or waived, Purchaser shall, and Parent shall cause Purchaser to, cause the Offer not to Section 8.1(d) expire, subject however to Purchaser's and Parent's rights of termination under this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(bc) As soon as practicable on Parent and Purchaser represent that the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will 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 other applicable lawsuntrue 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 made 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 in writing for inclusion in the Offer Documents. Parent, Offeror Each of Parent and the Company each agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Western Atlas Inc), Merger Agreement (3-D Geophysical Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article V hereof and none of the events or conditions set forth in paragraphs Annex I hereto (athe “Tender Offer Conditions”) through shall have occurred or be existing and not have been waived by Purchaser, Purchaser shall (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”) and within the meaning of The Securities Regulation Code of the Philippines (including the rules and regulation promulgated thereunder, the “SRC”)) a tender offer , as promptly as reasonably practicable (but in any event no later than the Final Launch Date (as amended from time to time defined below)), commence (such date on which the offer commences in accordance with this Agreementthe United States, the "Offer"“Launch Date”) an offer to purchase (or, if required by applicable Law commence separate offers in the United States and the Philippines to purchase) all outstanding Common Shares and ADSs at the Offer Price, (ii) as promptly as reasonably practicable (on or prior to the Launch Date), file a Tender Offer Statement on Schedule TO and all other necessary documents with the United States Securities and Exchange Commission (the “SEC”) and a Form 19-1 with the Philippine Securities and Exchange Commission (the “PSEC”) and make all announcements, deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act and under Rule 19 of the issued SRC, in each case in connection with the Offer (together, such documents as may be amended 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 Isupplemented, the party which makes “Offer Documents”) and (iii) use reasonable efforts to consummate the Offer, whether Parent or Subsubject to the terms and conditions thereof. Company shall cooperate and give all reasonable assistance to Purchaser to enable Purchaser to comply with the foregoing provisions, shall be referred including promptly and accurately providing to as the "Offeror." Purchaser any and all information and documents reasonably requested by Purchaser for this purpose. The obligation of Offeror Purchaser to accept for payment and to or pay for any Shares tendered in pursuant to the Offer shall will be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Purchaser of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror Company agrees that no Shares held by Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. For the purpose of this Agreement, the “Final Launch Date” shall be the date that is twenty-five (25) business days following public announcement of this Agreement; provided; however, if at 11:59 pm New York City time on the twenty-fifth business day following public announcement of this Agreement, either the SEC or PSEC has not granted in writing exemptive relief from compliance with, and taken a “no action” position with respect to, (with respect to the SEC) the rules promulgated under the Exchange Act and (with respect to the PSEC) the rules and regulations promulgated under the PCC and SRC, in connection with the Offer, as described in Schedule 1.1(a) attached hereto (the “No Action Relief”), but Purchaser (i) has submitted to the SEC or PSEC a draft or final request for such relief and (ii) is using all reasonable efforts to pursue the No Action Relief, such time period shall automatically extend until the date that is five (5) business days after Purchaser has received the No Action Relief; provided further that if, on what would otherwise be the Final Launch Date, Purchaser is still preparing or finalizing the Offer Documents and/or making or finalizing preparations to commence the Offer and is using all reasonable efforts to do so, the Final Launch Date shall automatically extend for an additional ten (10) business days. The obligation of the Purchaser to commence the Offer as provided in this Section 1.1(a) is subject to Purchaser not being entitled to terminate this Agreement pursuant to Section 5.4(d). Following the date hereof, the parties hereto shall use their reasonable efforts to commence the Offer as promptly as reasonably practicable.
(b) Purchaser expressly reserves the right in its sole discretion to amend or waive any such condition of the conditions set forth in Annex I hereto (including other than the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; providedprovided that without the prior written consent of Company, however, that unless -------- ------- previously approved by the Company in writing, Offeror will Purchaser shall 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) Price or change the form of consideration payable in the Offer Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer, amend the Minimum Condition (as defined in Annex I hereto) or (vii) amend any other term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding The Offer shall remain open at least until the foregoing, Offeror may, without date that is 20 business days after the consent commencement of the CompanyOffer (the “Expiration Date”), (i) unless Purchaser shall have extended the period of time for which the Offer is open in accordance with the terms of this Agreement, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. If, at any Expiration Date, any of the Tender Offer Conditions are not satisfied or waived by Purchaser, Purchaser may extend the Offer from time to time; provided, however, Purchaser may not extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days 60th day following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this AgreementLaunch Date without Company’s prior written consent. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the Tender Offer Conditions as of the Expiration Date, Offeror shall Purchaser will accept for payment , and pay for, for all Shares validly tendered and not validly withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable but in any event no later than ten (10) business days after expiration the Expiration Date (the date that Purchaser accepts for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer shall be referred to as the “Acceptance Date”), the date that Purchaser pays for such Shares, which shall in any event occur no later than ten (10) business days after the Acceptance Date, shall be referred to as the “Payment Date” and for the avoidance of doubt, the Payment Date for the Offer in respect of the OfferADSs will be as promptly as practicable, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offerapplicable Law, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of Acceptance Date and references in this Agreement to Payment Date relating to ADSs will be considered to mean the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"relevant Acceptance Date). The Offer Documents will comply in all material respects with applicable federal securities laws and Without the prior written consent of Company, Purchaser shall not accept for payment or pay for any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use Shares in the Offer Documents if and to if, as a result, Purchaser would acquire less than the extent that it shall have become false or misleading in any material respect. Offeror will take all steps number of Shares necessary to cause satisfy the Offer Documents as so corrected 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 federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent Minimum Condition (as defined in Section 3.3 Annex I). Purchaser may provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act and Rule 19 under the SRC immediately following the Acceptance Date on substantially the same terms as the Offer and keep such subsequent offer open for at least 20 business days after the commencement of such subsequent offering period (the “Subsequent Offering”). As used in this Agreement), a “business day” shall mean any day of the year other than a Saturday, Sunday or any other day on which banks located in New York, New York USA or Makati City or Manila, Philippines are generally closed for business.
Appears in 2 contracts
Sources: Acquisition Agreement (Ayala Corp), Acquisition Agreement (eTelecare Global Solutions, Inc.)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any none of the conditions set forth in paragraphs (a) through (i) of Annex I heretoto this Agreement shall have occurred, Parent shall the Purchaser (or shall cause Sub toone or more other direct or indirect wholly-owned subsidiaries of Parent) shall, as promptly as practicable following not later than one business day after execution of this Agreement, publicly announce the date hereoftransactions contemplated hereby, but in no event and not later than five business days after the initial public announcement execution of the Offerthis Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an 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"), Shares at a price of not less than $10.50 24.00 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 cash (the "Offeror.Offer," The obligation which term shall include any amendments to such Offer not prohibited by this Agreement) and, subject to a minimum 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 shall be validly tendered in accordance with the terms not less than a majority of the Offer prior to the expiration date of the Offer and not withdrawn a number of outstanding Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis basis) being validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"), (ii) the 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 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 further conditions set forth in Annex I heretoof this Agreement, shall consummate the Offer. Offeror expressly reserves the right in its sole discretion The Offer shall be made by means of an offer to waive any such condition (including the Minimum Condition, provided that no such waiver of purchase containing the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and further conditions of the Offer; provided, however, that unless -------- ------- previously approved by the 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to I. The Purchaser hereby covenants and agrees that it shall hold the Offer in any material respect adverse to open for no less than 25 business days. Simultaneously with the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SECCommission") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer DocumentsSchedule 14D-1"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. ParentNotwithstanding the foregoing, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and event any of the conditions set forth in Annex I to the extent that it this Agreement shall have become false or misleading in any material respect. Offeror will take all steps necessary to cause occurred, the Offer Documents as so corrected to be filed with Purchaser may terminate the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereofOffer. 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 to prepare and file with the Commission a proxy statement relating to such special meeting, all in accordance with Sections 6.1 and 6.2 hereof.
(b) The Purchaser expressly reserves the right to modify the terms and conditions of the Offer from time to time, except that, without the prior written approval of the Company, the Purchaser shall not amend the Offer (i) to reduce the cash price per Share to be paid pursuant thereto, (ii) to reduce the number of Shares to be purchased thereunder, (iii) to change the form of consideration to be paid in the Offer, (iv) to increase the minimum number of Shares which must be tendered as a condition to the Offer, (v) to waive the Minimum Condition if such waiver would result in less than a majority of the outstanding Shares being accepted for payment or paid for pursuant to the Offer, (vi) to impose additional conditions to the Offer, (vii) to extend the period of the Offer beyond 60 days, except that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to may be returned extended beyond 60 days (subject to the registered holders Company's right of termination in Section 8.1 herein), without the prior written approval of the Shares represented by Company, if all required waiting periods under applicable law have not expired or (viii) otherwise to amend the certificate or certificates surrendered terms of the Offer (including the conditions set forth in Annex I) in a manner that is materially adverse to stockholders of the Exchange Agent (as defined in Section 3.3 of this Agreement)Company.
Appears in 2 contracts
Sources: Merger Agreement (WDR Acquisition Corp), Merger Agreement (Wonderware Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result in a failure been terminated pursuant to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoArticle V, Parent Offeror shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer the Offer as promptly as practicable (as amended from time to time but in accordance with this Agreement, any event no later than the "Offer") to purchase all first Business Day after the date of the issued and outstanding shares of common stockShareholders Meeting (which, par value $0.005 per shareif the Shareholders Meeting occurs on July 30, of the Company 2015 (the "Shares" or "Common Stock"China time), 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 July 31, 2015 (New York City time)) after the "Offerordate of the Shareholder Meeting."
(b) The obligation of Offeror to accept for payment and to pay for any Company Common Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered satisfaction, or waiver by Offeror in accordance with the terms hereof, of the condition that such tendered Company Common Shares represent at least 20% of the issued and outstanding Company Common Shares and the other conditions and requirements that are set forth in Exhibit A, as such conditions may be modified in accordance with this Agreement (the “Offer Conditions”). Subject to the prior satisfaction, or waiver by Offeror in accordance with the terms hereof, of the Offer prior Conditions as of the Expiration Time, Offeror shall consummate the Offer in accordance with its terms and accept for payment and pay for all Company Common Shares validly tendered and not validly withdrawn pursuant to the expiration date Offer as promptly as practicable after the Expiration Time subject to the Offer Cap and Section 1.02(f). The Offer Price payable in respect of each Company Common Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid to the sellers in cash, without interest, on the terms and subject to the conditions set forth in this Agreement as soon as practicable after the Expiration Time (as the same may be extended or required to be extended).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in this Agreement, including the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretoOffer Conditions. Offeror expressly reserves the right (in its sole discretion discretion) to waive waive, in whole or in part, any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Offer Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), or to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved in writing by the Company in writingCompany, Offeror will shall 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 reduce the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) change or modify the Offer Cap, (iii) add to the Offer Conditions, (iv) waive, modify or change the Offer Conditions set forth in paragraphs (a), or (e) of Exhibit A, (v) waive, modify or change any other Offer Condition in any manner adverse to any shareholders of the Company, (vi) except as otherwise provided in this Section 1.02, extend or otherwise change the expiration date of the Offer or (vii) amend otherwise amend, modify or supplement any of the other term terms of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent shareholders of the Company.
(d) Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”), except as may otherwise be required by applicable Law, or, in the event the Initial Expiration Time has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with its terms, Offeror shall (i) extend the Offer beyond any scheduled expiration date on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the initial scheduled expiration date being 20 business days following commencement of the Offerparties hereto may agree) for a period not to extend beyond July 31, 1998each, if at on any then-scheduled expiration date of the Offer, Expiration Time any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived and ; (ii) extend the Offer, at the request of the Company, in accordance with Section 4.02(b)(i)(z); and (iii) extend the Offer for any the minimum period required by applicable Law, any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the China Securities Regulation Commission (the “CSRC”), the staff thereof of the SEC or the CSRC, or the New York Stock Exchange (“NYSE”) or the SZSE applicable to the Offer. The limitations regarding ; provided, however, that in no event (A) shall Offeror be required to extend the Offer beyond 45 calendar days from the date of its commencement (the “Outside Date”) or (B) shall this Section 1.02(e) be construed or deemed to impair, limit or otherwise restrict in any manner the right of the parties to terminate this Agreement pursuant to Article V.
(f) On the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject subject to the satisfaction or waiver in accordance with the terms and conditions hereof by Offeror of the Offer and this AgreementConditions as of the Expiration Time, Offeror shall accept for payment , and pay for, the Offer Price pursuant to Section 1.02(b) for all Company Common Shares validly tendered and not validly withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.02); provided that, notwithstanding anything herein to the contrary, subject to the satisfaction, or waiver in accordance with the terms hereof, by Offeror of the Offer Conditions as of the Expiration Time, in the event that Company Common Shares representing more than the Offer Cap are validly tendered in the Offer and not validly withdrawn, Offeror shall purchase from each tendering shareholder such tendering shareholder’s pro rata portion of the total number of Company Common Shares validly tendered, such that 20% of the issued and outstanding Company Common Shares as of immediately prior to the Expiration Time is acquired pursuant to the Offer. Acceptance for payment of Company Common Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” At the Offer Closing each of the Offeror and the Company shall deliver to the other party a duly executed counterpart to the A&R Shareholders’ Agreement.
(g) In no event shall the Offeror terminate the Offer except as expressly permitted by this Agreement. If the Offer is terminated or withdrawn by Offeror in accordance with this Agreement, or this Agreement is terminated pursuant to Article V, prior to the acceptance for payment of the Company Common Shares tendered in the Offer, subject Offeror shall promptly return (and in any event within three (3) Business Days), and shall cause any depository acting on behalf of Offeror to compliance with Rule 14e-1(c) under the Exchange Act. Subject promptly return, all tendered Company Common Shares to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
(bh) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Company shall promptly furnish to Offeror in writing all information concerning the Company and its Subsidiaries that may be required by applicable Laws or reasonably requested by Offeror for inclusion in the Offer Documents. Offeror shall take all steps necessary to cause the Offer Documents will comply to be filed with the SEC and disseminated to the shareholders of the Company, in all material respects with applicable federal securities laws each case as and any other applicable lawsto the extent required by the Exchange Act. ParentOfferor, Offeror on the one hand, and the Company each agree to Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Offeror will shall take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws the Exchange Act. Offeror shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any other applicable laws. The amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Offeror shall provide the Company and its counsel shall be given an a reasonable opportunity to review and comment on the such Offer Documents or response, and Offeror shall give reasonable and good faith consideration to any amendments thereto prior to the filing thereof with the SEC; provided such comments (it being understood that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will shall provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (thereon as defined in Section 3.3 of this Agreementsoon as reasonably practicable).
Appears in 2 contracts
Sources: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer been commenced, would result in give rise to a failure right to satisfy any of terminate the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toOffer pursuant to Article 11 hereof, as promptly as practicable following after the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the Offer, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")1▇▇▇ ▇▇▇) 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 Offer and the "Offeror." The obligation of Offeror Merger Subsidiary to accept for payment and to pay for any Tender Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn a number of withdrawn, Tender Shares whichthat, together with any the Tender Shares then directly or indirectly owned by Parent or Suband/or Merger Subsidiary, represents at least ninety (90%) percent represent a majority of the Voting Shares outstanding on a fully-diluted basis (the "“Minimum Condition"), (ii) the 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 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) to the other conditions set forth in Annex I hereto. Offeror Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions of to the Offer; provided, however, provided that unless -------- ------- otherwise provided by this Agreement or previously approved by the Company in writing, Offeror will not writing (i) decrease the price per Share payable in the OfferMinimum Condition may not be waived, (ii) decrease no change may be made that changes the maximum form of consideration to be paid, decreases the Offer Price or the number of Tender Shares to be purchased sought in the Offer, (iii) impose Offer or imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to or amends any terms of the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of Tender Shares and (iii) the SharesOffer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (determined using Rule 14d-1(g)(3) of the 1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Notwithstanding the foregoing, Offeror may, without Merger Subsidiary shall extend the consent Offer (1) from time to time for successive periods of no more than 10 Business Days each (or such longer period as may be consented to by the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period such consent not to extend beyond July 31be unreasonably withheld) if, 1998, if at any the scheduled or extended expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived waived, and (ii2) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide one or more subsequent offering periods (together, the “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. The limitations regarding Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, as set forth in the second preceding Merger Subsidiary shall, and the immediately preceding sentencesParent shall cause it to, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, promptly after the expiration of the Offer, all Tender Shares (x) validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to (y) validly tendered in the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferSubsequent Offering Period.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase and a form of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Tender Shares. The Offer Documents will comply Company shall promptly furnish to Parent and Merger Subsidiary in writing all material respects with information concerning the Company that may be required by applicable federal securities laws and any other applicable lawsor reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Offeror Merger Subsidiary and the Company each agree agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Tender Shares, in each case as and to the extent required by applicable U.S. federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents and each time before any amendments thereto prior to the filing thereof such document is filed with the SEC; provided that Offeror will attempt , and Parent and Merger Subsidiary shall give reasonable and good faith consideration to give any comments made by the Company and its counsel as much time prior to filing to so review counsel. Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Merger Subsidiary shall provide the Company and its counsel with (i) any comments Offeror and its or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, response of Parent and Sub Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall cause all tendered Shares to be returned to given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)SEC.
Appears in 2 contracts
Sources: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Section 8.1 and none of the events or conditions set forth in paragraphs (a) through (i) of Annex I hereto, hereto shall have occurred and be continuing and not have been waived by Parent shall or shall cause Sub toPurchaser, as promptly as reasonably practicable following and, in any event, within ten (10) Business Days of the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the Offer, Purchaser shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the "rules and regulations thereunder, the “Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase for cash all Shares at the Offer Price. The obligations 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 Purchaser to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with any Shares then owned by Parent or Sub, which represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-diluted basis (the "“Minimum Condition"), (ii) the 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 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 (iiiii) the other conditions set forth in Annex I hereto. Offeror expressly reserves Subject to the right in its sole discretion to waive any such condition (including prior satisfaction or waiver by Parent or the Minimum Condition, provided that no such waiver Purchaser of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)other conditions of the Offer set forth in Annex I hereto, to increase the price per Share payable Purchaser shall, in accordance with the terms of the Offer, to extend consummate the Offer and accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to make any other changes in the terms and conditions Offer promptly after expiration of the Offer, which shall initially be the 20th Business Day following the commencement of the Offer; provided, however, that unless -------- ------- previously approved by (x) if on the Company initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as extended in writingaccordance with this Agreement), 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 all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in addition to those set forth in Annex I heretoits sole discretion, (iv) change extend the Offer for such period as the Purchaser may determine; provided, however, that if on the initial expiration date of the Offer the conditions to the Offer set forth in paragraphs (c), (d) and (e) of Annex I hereto shall each be satisfied (or, in the case of paragraphs (d) and (e), if any material respect adverse such breach or failure to comply that has caused such non-satisfaction of the condition is objectively curable within ten (10) Business Days) but any other condition to the CompanyOffer shall not have been satisfied or waived, (v) except as provided in the next sentence, Purchaser shall be obligated to extend the OfferOffer for one or more periods of time of up to ten (10) Business Days each (or such longer period as Purchaser may agree in writing) until such conditions have been satisfied or waived; provided, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse that Purchaser shall not be required to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration the date that is thirty (30) Business Days following the initial scheduled expiration date being 20 business days following commencement of the Offer; (y) for a period not to extend beyond July 31the Purchaser may, 1998in its sole discretion, 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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") SEC or the staff thereof applicable to the Offer. The limitations regarding ; and (z) the terms Purchaser may, in its sole discretion, provide a “subsequent offering period” for three (3) to twenty (20) Business Days to acquire outstanding untendered Shares in accordance with Rule 14d-11 under the Exchange Act if the Minimum Condition and conditions all of the Offer, as other conditions set forth in Annex I hereto are satisfied or waived, but the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) number of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares that have been validly tendered and not withdrawn in the Offer and accepted for payment, together with any Shares then owned by Parent, is less than 90% of the outstanding Shares. Purchaser shall not extend the Offer following the termination of this Agreement. In addition, the Purchaser may increase the Offer Price and extend the Offer to the extent required by Law in connection with such increase, in each case in its sole discretion and without the Company’s consent, but Purchaser and Parent shall not, without the prior written consent of the Company, (A) decrease the Offer Price (as it may have been increased hereunder) or change the form of consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer that Offeror becomes obligated Offer, (C) amend or waive the Minimum Condition, (D) add to accept for payment, and pay for, pursuant the conditions to the Offer as soon as practicable after expiration set forth in Annex I hereto or modify such conditions in a manner adverse to the holders of Shares, (E) extend the Offer, subject to compliance with Rule 14e-1(cexcept as permitted by this Section 1.1(a) under the Exchange Act. Subject to or (F) make any other change in the terms and or conditions of the Offer that is adverse to the holders of Shares. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article VIII. If Purchaser shall commence a subsequent offering period in connection with the Offer, Parent Purchaser shall accept for payment and Sub will each use its reasonable best efforts to take, or cause to be taken, pay for all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferShares validly tendered during such subsequent offering period.
(b) As soon as practicable on On the date of the commencement of the OfferOffer is commenced, Offeror Purchaser shall file with the SEC United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer Offer, which will contain shall include the offer to purchase and purchase, form of the related letter of transmittal and summary advertisement form of notice of guaranteed delivery (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Subject to the Company’s compliance with Section 1.2(b), Parent and the Purchaser shall cause the Offer Documents will comply in all material respects with to be disseminated to holders of Shares as required by applicable U.S. federal securities laws and any other applicable laws. Parent, Offeror Each of Parent and the Company each Purchaser, 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 it shall have become false or misleading in any material respectrespect or as otherwise required by Law. Offeror will The Purchaser further agrees to 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 Shares as and to the extent required by applicable U.S. federal securities laws laws. The Company shall promptly furnish to Parent and any other applicable lawsPurchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt SEC and Parent and the Purchaser shall give reasonable and good faith consideration to give any comments made by the Company and its counsel as much time prior counsel. In addition, Parent and the Purchaser agree to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its or communications that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt thereof. In of such comments, and any written or oral responses thereto, and shall provide the event that Company and its counsel a reasonable opportunity to participate in the Offer is terminated or withdrawn by Offeror, response of Parent and Sub Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall cause all tendered Shares to be returned to given), including by participating with Parent and the registered holders of Purchaser or their counsel in any discussions or meetings with the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)SEC.
Appears in 2 contracts
Sources: Merger Agreement (Kinetic Concepts Inc /Tx/), Merger Agreement (Lifecell Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article 8, and that no event shall have occurred that and be continuing that, had the Offer been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoA, no later than 5:30 p.m. Eastern Daylight Savings time on July 28, 2009, Parent shall or cause Merger Sub to commence, and Merger Sub shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 In 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 shall be validly tendered each Share accepted by Merger Sub in accordance with the terms of the Offer prior shall be exchanged for the right to the expiration date of receive from Merger Sub the Offer Price. Parent shall cause Merger Sub to accept for payment, and Merger Sub shall accept for payment, all Shares which have been validly tendered and not withdrawn a pursuant to the Offer as soon as practicable following the Expiration Date. Notwithstanding the above, the obligation of Merger Sub to accept for payment, and pay for all Shares tendered pursuant to the Offer shall be subject (x) to the condition that the number of Shares which, together with any Shares then owned by Parent or Sub, represents validly tendered and not withdrawn shall be at least ninety (90%) percent the minimum number of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of required to approve this Agreement) in an amount sufficient to consummate , the Merger and the other transactions contemplated hereby herein pursuant to the terms organizational documents of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent Company and the Company shall agree or as are not materially more onerous than as set forth in the Commitments FBCA (the "Financing “Minimum Condition") ”), and (iiiy) to the other conditions set forth in Annex I heretoA. The conditions to the Offer set forth in Annex A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to the following sentence. Offeror Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share amount of consideration payable in the Offer, to extend the Offer and to make waive any other changes in the terms and conditions condition of the Offer, except the Minimum Condition; providedprovided that, howeverMerger Sub, that unless -------- ------- previously approved by the Company in writingat its sole option, Offeror will not may waive such Minimum Condition (i) if the number of Shares validly tendered and not withdrawn shall be at least equal to the difference between (x) the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA, less (y) the number of Shares subject to Support Agreements or (ii) with the prior written consent of the Company. The failure of Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Without the prior written consent of the Company, Merger Sub shall not decrease the price per Share amount of consideration payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or reduce the time period during which the Offer shall remain open. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in the Offer.
(viib) amend any other term On the date of commencement of the Offer, Parent and Merger Sub shall (i) file or cause to be filed with the SEC a combined Schedule 13E-3 and Tender Offer in a manner adverse Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, the “Schedule TO”) and related Offer to Purchase, form of letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of Shares as and to the Sharesextent required by applicable Law. Notwithstanding The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the foregoing, Offeror may, without Company that may be required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in the consent Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of the Company, all material disclosure relating to (i) the company financial advisor ▇▇▇▇▇ & Company LLC (including the amount of fees and other consideration that ▇▇▇▇▇ & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor ▇▇▇▇▇▇▇ & Company (including the amount of fees and other consideration that ▇▇▇▇▇▇▇ & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of ▇▇▇▇▇ & Company LLC and ▇▇▇▇▇▇▇ & Company referred to in Section 4.20 and (iv) the information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by ▇▇▇▇▇ & Company LLC and ▇▇▇▇▇▇▇ & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or 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 applicable Law. Parent and Merger Sub shall use their reasonable best efforts to cause the Schedule TO as so corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as soon as reasonably practicable and as and to the extent required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any written comments or other communications, and shall inform them of any oral comments or other communications, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given).
(c) Subject to the terms and conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the twentieth Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”); provided, however, that Merger Sub shall: (i) from time to time extend the Offer beyond any scheduled expiration date (for one or more periods of up to 20 Business Days each, the initial scheduled expiration date being 20 business days following commencement length of the Offer) for a each such period not to extend beyond July 31, 1998be determined by Merger Sub in its sole discretion, if at the scheduled Expiration Date any scheduled expiration date of the conditions of the Offer, any of including the Minimum Condition and the conditions to Offeror's obligation to accept for paymentand requirements set forth in Annex A, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer. The limitations regarding Merger Sub may, from time to time, extend the terms and conditions Offer for a period of no more than 20 days in the aggregate, if at the scheduled Expiration Date less than 80% of the Offernumber of Shares then outstanding less the number of shares held by persons subject to Support Agreements (the “Support Agreement Shares”) have been validly tendered and not withdrawn. Notwithstanding the above, in no event shall Merger Sub be required to, or shall Parent be required to cause Merger Sub to, extend the Offer beyond the Outside Date (as set forth in hereinafter defined). In no event shall Merger Sub extend the second preceding and Offer beyond the immediately preceding sentences, shall not be applicable in Outside Date without the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions consent of the Offer Company. Parent and this AgreementMerger Sub shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, Offeror and, without limiting the generality of the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept promptly following the acceptance of such Shares for payment, and pay for, payment pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and subject to the conditions of the OfferOffer and this Agreement. This paragraph shall not be deemed to impair, Parent and Sub will each use its reasonable best efforts to take, limit or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading otherwise restrict in any material respect. Offeror will take all steps necessary manner the right of Parent or Merger Sub to cause the Offer Documents as so corrected terminate this Agreement pursuant 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 federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Article VIII.
Appears in 2 contracts
Sources: Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Article VIII and none of the conditions events set forth in paragraphs (a) through (i) of Annex I hereto, Parent hereto (the "Tender Offer Conditions") shall or shall cause Sub tohave occurred, as promptly as practicable following the date hereofpracticable, but in no event later than five the fifth business days after day from the initial public announcement date of this Agreement, Parent shall cause the Offer, Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, including the rules and regulations promulgated thereunder (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of outstanding Shares at the issued and outstanding shares of common stockOffer Price, par value $0.005 per shareshall, of after affording the Company a reasonable opportunity to review and comment thereon, file all necessary documents with the Securities and Exchange Commission (the "Shares" or SEC"Common Stock) in connection with the Offer (the "Offer Documents"), at a price of not less than $10.50 per Share, net and shall use reasonable best efforts to the seller in cash. For purposes of this Article I, the party which makes consummate the Offer, whether Parent or Sub, shall be referred subject to as the "Offeror." terms and conditions thereof. The obligation of Offeror the Purchaser to accept for payment and to or pay for any Shares tendered in the Offer shall pursuant thereto will be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves .
(b) Without the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend Purchaser shall not decrease the Offer, (vi) Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the Common Shares. Notwithstanding The Offer shall remain open until the foregoingdate that is 20 business days (as such term is defined in Rule 14d-1(c)(6) under the Exchange Act) after the commencement of the Offer (the "Expiration Date"), Offeror unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable law, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as so extended, may expire. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, the Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after such Expiration Date; provided that, (i) if on any scheduled Expiration Date of the Offer all of the Tender Offer Conditions (other than the Minimum Condition (as defined in Annex I) shall not have been satisfied or waived, the Offer may, but need not, be extended from time to time without the consent of the Company, (i) extend Company for such period of time as is reasonably expected by the Purchaser to be necessary to satisfy the unsatisfied conditions; provided further that the Offer beyond any scheduled expiration date (may be extended by the initial scheduled expiration date being 20 business days following commencement Purchaser without the consent of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer Company for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer. The limitations regarding the terms , and conditions (ii) if all of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions Tender Offer Conditions are satisfied but less than 90% of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all outstanding Common Shares have been validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of in the Offer, subject the Purchaser shall be required to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to extend the Offer which will contain for one additional business day (or such longer time as may be agreed to by the offer to purchase Purchaser and form of the related letter of transmittal and summary advertisement Company (together with any supplements or amendments thereto and including exhibits thereto, the an "Offer DocumentsExtension"). The If, following such Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. ParentExtension, Offeror the Minimum Condition has not been satisfied, the Purchaser shall effect successive additional Offer Extensions (which Offer Extensions shall each be for one business day unless the Purchaser and the Company each shall agree to promptly correct a longer period) until the earlier to occur of (i) the close of business on the business day immediately prior to the Special Meeting (as defined herein) and (ii) such time as the Minimum Condition has been satisfied, after which time the Purchaser may not extend the Offer for any information provided by it reason. Without the prior written consent of the Company, the Purchaser shall not waive the Minimum Condition or accept for use payment or pay for any Shares in the Offer Documents if and to if, as a result, Purchaser would acquire less than the extent that it shall have become false or misleading in any material respect. Offeror will take all steps number of Shares necessary to cause satisfy the Offer Documents as so corrected 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 federal securities laws and any other applicable lawsMinimum Condition. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes It is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event agreed that the Tender Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to Conditions are solely for the registered holders benefit of the Shares represented Purchaser and may be asserted by the certificate Purchaser regardless of the circumstances giving rise to any such condition (but not including any action or certificates surrendered to inaction by the Exchange Agent Purchaser) or may (except as defined otherwise specifically provided in Section 3.3 of this Agreement), but need not, be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Purchaser shall commence, and Parent shall or shall cause Sub toPurchaser to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicable following after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 Purchaser to accept for payment and to pay for any Shares and/or Warrants tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I A hereto. Offeror Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Per Share payable in Amount and/or the Offer, to extend the Offer Per Warrant Amount and to make any other changes in the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that unless -------- ------- previously approved by that, without the Company in writingprior written consent of the Special Committee, Offeror Purchaser will not (i) decrease the price per Per Share payable in Amount or the OfferPer Warrant Amount, (ii) decrease reduce the maximum number of Shares or Warrants to be purchased in the Offer, (iii) impose conditions to change the Offer form of the consideration payable in addition to those set forth in Annex I heretothe Offer, (iv) change add to, modify or supplement the conditions to the Offer set forth in any material respect adverse to the CompanyAnnex A hereto, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term expiration date of the Offer in a manner adverse to beyond the holders of the Shares. Notwithstanding the foregoingtwentieth business day following commencement thereof; PROVIDED, Offeror mayHOWEVER, without the consent of the Company, (i) Purchaser may extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of (A) if the conditions to Offeror's obligation to accept for payment, the Offer set forth in Annex A have not been satisfied and pay for, Shares (including, with respect B) to the Financing Condition, extent necessary to respond to comments on the consummation of the sale of the Senior Notes Offer Documents (as defined in Section 4.2(d)below) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend from the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC") or (vi) make any other change in the staff thereof applicable terms or conditions of the Offer which is materially adverse to the Offerholders of Shares or Warrants. The limitations regarding Per Share Amount and the Per Warrant Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and Sub will each use its reasonable best efforts to takepay, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate as promptly as practicable after expiration of the Offer, for all Shares and Warrants validly tendered and not properly withdrawn.
(b) As soon as practicable on On the date of the commencement of the Offer, Offeror Parent and Purchaser shall file with the SEC (i) a Tender Offer Statement on Schedule 14D-1 14D-1, including all exhibits thereto (together with all amendments and supplements thereto, the "SCHEDULE 14D-1"), with respect to the Offer which will and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, including all exhibits thereto (together with all amendments and supplements thereto, the "SCHEDULE 13E-3"), with respect to the Offer and the other transactions contemplated hereby (the "TRANSACTIONS"). The Schedule 14D-1 and the Schedule 13E-3 shall contain the or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and form the related letter of transmittal (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase, the related letter of transmittal and summary advertisement (such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror Purchaser and the Company each agree to shall correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it which shall have become false or misleading in any material respect. Offeror will misleading, and Parent and Purchaser shall take all steps necessary to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3, as so corrected corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of SharesShares and Warrants, in each case as and to the extent required by applicable federal securities laws and any other applicable lawslaw. The Company Company, the Special Committee and its their respective counsel shall be given an reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company . Parent and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company Company, the Special Committee and its their respective counsel with a copy of any written comments Offeror and its counsel or telephonic notification of any oral comments Parent or Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Parent and its counsel shall provide the Company, the Special Committee and their respective counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and tele- phone conferences, relating to the Offer Documents, the Transactions or this Agreement. In the event that Parent or the Purchaser receives any comments from the SEC or its staff with respect to the Offer is terminated Documents, each shall use its reasonable best efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(c) Parent shall provide or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned provided to Purchaser on a timely basis the funds necessary to accept for payment, and pay for, any Shares and/or Warrants that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Merger Agreement (Vivendi), Merger Agreement (Aqua Alliance Inc)
The Offer. (a) Provided that nothing this Agreement shall --------- not have been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toand be continuing, as promptly as practicable following practicable, and, in any event, within seven business days of the date hereof, but in no event later than five business days after the initial public announcement of the Offer, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time the Offer to time in accordance with this Agreement, ------------ purchase for cash all Shares at the "Offer") to purchase all Offer Price. The obligations 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 Purchaser to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with any the Shares then beneficially owned by Parent or Subthe Purchaser, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), ) and (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves Subject to the right in its sole discretion to waive any such condition (including prior satisfaction or waiver by Parent or the Minimum Condition, provided that no such waiver Purchaser of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer in any material respect adverse promptly after expiration of the Offer (subject to the Companyprovisions of Rule 14d-11 under the Exchange Act, (v) except as provided in to the next sentenceextent applicable). The Purchaser shall not, extend at any time, amend or waive the OfferMinimum Condition and shall not decrease the Offer Price, (vi) change the form of consideration payable in the Offer Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, or (vii) amend any other term condition of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, Shares without the prior written consent of the Company, provided, -------- however, that (ix) if on the 20th business day following the commencement of the ------- Offer (within the meaning of Rule 14d-2 under the Exchange Act) (the "Initial ------- Expiration Date"), 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 Offer beyond any scheduled expiration date (for such period as the initial scheduled expiration date being 20 business days following commencement of 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 paymentPurchaser may determine, and pay for(y) the Purchaser may, Shares (includingin its sole discretion, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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") SEC or the staff thereof applicable to the Offer. The limitations regarding In addition, subject to the terms and conditions provisions of Section 8.1(b)(iii), if, on the Initial Expiration Date or any subsequent expiration date (related to an extension of the Offer), (x) the applicable waiting periods under the HSR Act (as defined herein), the ECMR (as defined herein) or any other comparable provisions under any applicable pre-merger notification laws or regulations of foreign jurisdictions have not expired or terminated or (y) any of the events set forth in the second preceding clause (c) of Annex I shall have occurred and be continuing (and the immediately preceding sentences, condition in Annex I with respect thereto shall not have been waived by the Purchaser) or (z) any of the events set forth in clause (a) or (b) of Annex I shall have occurred and be continuing and the Purchaser and Parent shall be contesting such event to the extent required by Section 6.4(b) hereof (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser), then in each such case, the Purchaser shall extend the Offer. In the event this Agreement the Minimum Condition is terminated pursuant to Section 8.1(d) of this Agreement. Subject to satisfied and the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Purchaser purchases Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance the Purchaser may, in the Purchaser's sole discretion, provide a "subsequent offering period" in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject to In addition, the terms and conditions Purchaser may increase the Offer Price (but not change any other condition of the Offer) and extend the Offer to the extent required by law in connection with such increase, Parent in each case in its sole discretion and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate without the OfferCompany's consent.
(b) As soon as practicable on the date of the commencement of Offer is commenced, Parent and the Offer, Offeror Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 TO with --- respect to the Offer Offer, which will contain shall include the offer to purchase and form forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer ----- Documents"). The Parent and the Purchaser shall cause the Offer Documents will comply in all material respects to be --------- filed with the SEC and disseminated to holders of Shares as required by applicable federal securities laws and any other applicable laws. Parent, Offeror Parent and the Company each Purchaser, 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 it shall have become false or misleading in any material respectrespect or as otherwise required by law. Offeror will The Purchaser further agrees to 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 Shares as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt . In addition, Parent and the Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its or communications that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent's or the Purchaser's, as the case may be, receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
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) of Annex I hereto, Parent shall or shall cause Sub toMerger Subsidiary shall, as promptly as practicable following after the date hereof, but in no event later than five business days after the initial public announcement first Business Day (as defined in Rule 14b-1(c)(6) of the Offer, commence (within the meaning of Rule 14d-2 under the Securities and Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with ), following the execution of this Agreement, issue a public announcement of the execution of this Agreement and as promptly as practicable, but in any event within five Business Days following the public announcement of the terms of this Agreement, commence an offer (the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 .01 per shareshare together with attached rights to purchase shares (the "Shares"), of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 12.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, Such Offer shall be referred remain open for a period not to as exceed 30 Business Days (the "Offeror." Offer Period") subject to extension as provided below. 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 shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any the Shares then owned by Parent or Suband Merger Subsidiary, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis majority (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (as defined in if any) (other than options to be canceled pursuant to Section 4.2(d) of this Agreement) in an amount sufficient 2.5 hereof, and Shares to consummate the transactions contemplated hereby be issued pursuant to the terms of the Commitments (as Stock Option Agreement defined in said Section 4.2(d)herein) or such other terms as Parent and the issuance of all Shares that the Company shall agree or is obligated to issue (such total number of outstanding Shares being hereinafter referred to as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionFully Diluted Shares") and (iii) to the other conditions set forth in Annex I hereto. Offeror Parent and Merger Subsidiary expressly reserves reserve the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; provided, provided however, that unless -------- ------- previously approved by that, without the Company in writingwritten consent of the Company, Offeror will not no change may be made which (i) decrease except as provided in the next sentence, extends the Offer; (ii) changes the form of consideration to be paid for the Shares, (iii) decreases the price per Share payable or the number of Shares sought in the Offer, (iiiv) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the CompanyI, (v) except as provided in changes or waives the next sentenceMinimum Condition, extend the Offer, or (vi) makes any other change the form of consideration payable in to any condition to the Offer or (vii) amend any other term of the Offer set forth in a manner Annex I which is materially adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, Merger Subsidiary may (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any Period until all of the conditions to Offerorthe Merger Subsidiary's obligation to accept for payment, and pay for, purchase Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for including, without limitation, any period required (A) by any rule, regulation, interpretation interpretation, or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (B) pursuant to the HSR Act, defined below, shall have terminated, or (C) to obtain necessary approval of each state insurance regulatory agency required for consummation of the Offer, (ii) extend the Offer Period for a period of not more than 10 Business Days beyond the expiration thereof, as such may be extended pursuant to subparagraph (i) hereof, (iii) extend the Offer Period for an additional period of not more than 10 Business Days beyond that permitted by subparagraphs (i) and (ii) hereof if on the date of such extension, less than ninety percent (90%) of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer, and (iv) extend the Offer for any reason for a period of not more than five Business Days beyond the latest Expiration Date that would be otherwise permitted under clauses (i), (ii), or (iii) of this sentence. The limitations regarding Subject to the terms of the Offer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror Merger Subsidiary shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).not
Appears in 2 contracts
Sources: Merger Agreement (Centris Group Inc), Merger Agreement (HCC Insurance Holdings Inc/De/)
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) of Annex I hereto, Parent shall or shall cause Sub to, as 1.1.1 As promptly as practicable following practical after the date hereofof this Agreement on a date mutually agreeable to Parent, HoldCo and the Company (but in no event later than five business days after the initial public announcement of the OfferAugust 16, 2016), Merger Sub shall (and Parent and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
1.1.2 In accordance with the terms and conditions of this Agreement, and subject to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to), promptly (within the meaning of Rule 14e-1(c) of the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreementfollowing the Expiration Time, 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 irrevocably accept for payment and to (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. HoldCo shall (and Parent shall cause HoldCo to) provide or cause to be provided to Merger Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any Shares tendered in shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
1.1.3 The Offer shall be subject only made by means of an offer to purchase (ithe “Offer to Purchase”) the condition that there shall be validly tendered in accordance with the terms of set forth in this Agreement and subject only to the Offer prior Conditions. Merger Sub expressly reserves the right to the expiration date of (i) increase the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition")Price, (ii) waive any Offer Condition other than the 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 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") Minimum Condition and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, without the prior written consent of the Company, Merger Sub shall not, and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub not to:
(i) decrease the Offer Price;
(ii) change the form of consideration to be paid in the Offer;
(iii) decrease the number of shares subject to the Offer; or
(iv) impose additional conditions to the Offer or, except as permitted by this Agreement, otherwise amend, modify or supplement any of the conditions to the Offer or terms of the Offer in a manner materially adverse to the holders of the shares of Company Common Stock.
1.1.4 The Offer shall expire at Midnight (New York City time) on the date that is twenty (20) Business Days following commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1.5, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
1.1.5 Subject to the parties’ respective rights to terminate the Agreement pursuant to Section 7, the Offer may or shall, as applicable, be extended from time to time as follows:
(i) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent, HoldCo and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of five Business Days each (each such increment to end at 5:00 p.m. (New York City time), on the last Business Day of such increment) (or such other duration of up to 20 successive Business Days at the sole discretion of Parent and HoldCo or as may be agreed to by Parent, HoldCo and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that unless -------- ------- previously approved by Merger Sub shall not be required or permitted to extend the Company in writing, Offeror will not (i) decrease Offer to a date later than the price per Share payable in the Offer, Outside Date; and
(ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Merger Sub shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any the minimum period required by any rule, regulationapplicable Law, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or its staff, or The NASDAQ Global Select Market (“NASDAQ”) or its staff. Merger Sub shall not, and HoldCo shall (and Parent shall cause HoldCo to) not permit Merger Sub to, extend the staff thereof applicable Offer in any manner except as required or expressly permitted pursuant to this Section 1.1.5 or as may otherwise be agreed in writing with the OfferCompany. The limitations regarding Notwithstanding the terms and conditions of the Offerforegoing, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event that, as a result of the extension of the Offer in accordance with the provisions of this Section 1.1.5, the Expiration Time would occur on or after the date that is the Outside Date, the Expiration Time shall instead occur at 5:00 p.m., (New York City time), on the Business Day immediately preceding the Outside Date.
1.1.6 The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such amendment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that the Company may not effect such change except as expressly permitted by this Agreement.
1.1.7 In the event that this Agreement is terminated pursuant to in accordance with Section 8.1(d7, Merger Sub shall (and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to) as promptly as practicable (and in any event within one Business Day of this Agreement. Subject to such termination) irrevocably and unconditionally terminate the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment Offer, and pay for, all Shares validly tendered and shall not withdrawn acquire any shares of Company Common Stock pursuant to the Offer that Offeror becomes obligated and shall instruct any depository acting on behalf of Parent, HoldCo or Merger Sub to accept for paymentreturn, and pay forin accordance with applicable Law, pursuant all tendered shares of Company Common Stock to the Offer as soon as practicable after expiration registered holders thereof.
1.1.8 On the date of commencement of the Offer, subject to compliance with Offer (within the meaning of Rule 14e-1(c) 14d-2 under the Exchange Act. Subject to the terms and conditions of the Offer), Parent and Parent, HoldCo or Merger Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which in accordance with Rule 14d-3 under the Exchange Act (together with all exhibits, amendments and supplements thereto, the “Schedule TO”) that will contain or incorporate by reference the offer Offer to purchase Purchase and form of the related letter of transmittal and summary advertisement (the Schedule TO, together with any supplements or amendments thereto and including exhibits theretoall documents included therein pursuant to which the Offer will be made, the "“Offer Documents"”). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror HoldCo and Merger Sub shall cause, at Merger Sub’s expense, the Offer Documents to be disseminated to the Company’s stockholders as and to the extent required by applicable Law. Each of Parent, HoldCo, Merger Sub and the Company each agree shall use its respective reasonable best efforts to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will take all steps necessary , and Parent and HoldCo further agree to cause use reasonable best efforts to promptly cause, at Merger Sub’s expense, the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and to promptly be disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable federal securities laws and any other applicable lawsLaw. The Company shall use reasonable best efforts to promptly furnish or otherwise make available to Parent, HoldCo, Merger Sub or Parent’s, HoldCo’s and Merger Sub’s legal counsel any information concerning the Company and the Company’s Subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent, HoldCo or Merger Sub for inclusion in or in connection with the Offer Documents. Parent, HoldCo and Merger Sub shall give the Company and its counsel shall be given an reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company . Parent, HoldCo and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Merger Sub shall provide the Company and its counsel with a copy of any comments Offeror written comments, and its a written summary of any oral comments, that Parent, HoldCo, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of any such comments. Each of Parent, HoldCo and Merger Sub shall give the receipt thereof. In Company and its counsel a reasonable opportunity to review and comment on any proposed written responses to any comments of the event that SEC or its staff with respect to the Offer is terminated or withdrawn by OfferorDocuments.
1.1.9 Parent, Parent HoldCo, Merger Sub and Sub the paying agent with respect to the Offer shall cause all tendered Shares be entitled to deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as are required to be returned deducted and withheld with respect to the registered holders making of such payment under the Shares represented by Internal Revenue Code of 1986, as amended, and the certificate rules and regulations promulgated thereunder (the “Code”), or certificates surrendered under any provision of state, local or foreign Tax Law. To the extent amounts are so withheld and (if required) paid over to the Exchange Agent (as defined in Section 3.3 appropriate Governmental Authority, the withheld amounts shall be treated for all purposes of this Agreement)Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Appears in 2 contracts
Sources: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 8.1, as promptly as practicable following the date hereof, (but in no any event not later than five eight business days after the initial public announcement of Purchaser's intention to commence the Offer), Parent will cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender offer (as amended from time to time in accordance with this Agreement), the "Offer") Offer whereby Purchaser will offer to purchase for cash all of the issued and outstanding shares of common stock, par value $0.005 per share, of Shares at the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per SharePer Share Amount, net to the seller in cashcash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than the Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Article IAgreement, "PERSON" shall mean an individual, corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time (as defined in Section 2.2 hereof), the party which makes outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Parent to cause Purchaser to commence the Offer, whether Parent or Sub, shall be referred to as consummate the "Offeror." The obligation of Offeror Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) 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 whichin accordance therewith will be subject to, together with any Shares then owned by Parent or Suband only to, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ANNEX A hereto (the "SECOFFER CONDITIONS") or the staff thereof applicable to the Offer. The limitations regarding ), the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerwhich are hereby incorporated herein by reference.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoand be continuing, Parent Purchaser shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender offer the Offer as promptly as practicable (as amended from time to time and in accordance with this Agreement, any event not later than ten (10) business days) following the "Offer") to purchase all date hereof. The obligations 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 Purchaser to accept for payment and to pay for any Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a that number of Shares which, together with any the Shares then actually owned by Parent Yahoo! or SubPurchaser or any direct or indirect wholly owned subsidiary of Yahoo!, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-diluted basis Fully Diluted Basis (the "Minimum ConditionMINIMUM CONDITION"), ; and (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves For purposes of the right foregoing, "FULLY DILUTED BASIS" shall refer to the number of Shares issued and outstanding at any time after taking into account all Shares issuable upon the conversion of Launch convertible securities or upon the exercise of any options, warrants or rights to purchase shares of Launch capital stock that could vest within 90 days of the time of determination and in its sole discretion each case that have a conversion or exercise price per share less than the Offer Price. Subject to waive any such condition (including the Minimum Condition, provided that no such prior satisfaction or waiver by Yahoo! or Purchaser of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to Purchaser shall consummate the Offer in any material respect adverse accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the CompanyOffer. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") that contains the terms set forth in this Agreement, (v) except as provided the Minimum Condition and the other conditions set forth in Annex I hereto. Purchaser shall not, and Yahoo! shall cause Purchaser not to, decrease the next sentenceOffer Price, extend the Offer, (vi) change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer (the "INITIAL EXPIRATION DATE") except as set forth below, or (vii) amend any other term condition of the Offer in a any manner adverse to the holders of the Shares, in each case without the prior written consent of Launch (such consent to be authorized by Launch's Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror Purchaser may, without the consent of the CompanyLaunch, (i) extend the Offer beyond any the Initial Expiration Date for the shortest time periods which it reasonably believes are necessary, in one or more such periods, but in no event more than an additional fifteen (15) business days, if, at the scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, Yahoo! and Purchaser shall not be in material breach of this Agreement and any of the conditions to OfferorPurchaser's obligation to accept Shares for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and such condition is reasonably capable of being satisfied, or (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).the
Appears in 2 contracts
Sources: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media 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) of Annex I hereto, Parent shall or shall cause Sub toMerger Subsidiary shall, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, commence an offer (the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 .01 per shareshare (the "Shares"), of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 28.00 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 shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any the Shares then owned by Parent or Suband Merger Subsidiary, represents at least ninety (90%) percent 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 on a fully-diluted basis Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Condition"), (ii) the 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 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) to the other conditions set forth in Annex I hereto. Offeror Parent and Merger Subsidiary expressly reserves reserve the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; providedPROVIDED that, howeverwithout the written consent of the Company, that unless -------- ------- previously approved by no change may be made which changes the Company in writingform of consideration to be paid, Offeror will not (i) decrease decreases the price per Share payable or the number of Shares sought in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I heretoI, changes or waives the Minimum Condition, extends the Offer (iv) except as set forth in the following sentence), or makes any other change the conditions to any condition to the Offer set forth in 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 (vii) amend any other term of the Offer in a manner Annex I which is materially adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Offeror Merger Subsidiary shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; PROVIDED that Merger Subsidiary may extend the Offer if, at the scheduled expiration date of the Offer or any extension thereof any of the conditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or waived, and Merger Subsidiary may extend the Offer for a further period of time of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in accordance with the terms of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject prior to the terms and conditions expiration date of the OfferOffer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and Sub will each use its reasonable best efforts to takeMerger Subsidiary, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate represents at least 80% of the OfferFully Diluted Shares.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Subsidiary shall (i) file with the SEC (defined below in Section 4.1(a)) a Tender Offer Statement on Schedule 14D-1 14D-l with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, collectively the "Offer Documents"). The ) and (ii) cause the Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable lawsto be disseminated to holders of Shares. Parent, Offeror Merger Subsidiary and the Company each agree agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will Parent and Merger Subsidiary agree to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto Schedule 14D-l prior to the filing thereof its being filed with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Computer Management Sciences Inc), Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 7.1, as promptly as practicable following the date hereof, (but in no event later than five business days after the initial public announcement of the Offerexecution of this Agreement), Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all shares of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Stock at a price of not less than $10.50 22.75 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"), subject to the conditions set forth in Annex A hereto and subject to Section 2.2(e). The obligation Company shall not tender Shares held by it or by any of Offeror its subsidiaries pursuant to the Offer. The initial expiration date to be set forth in the Offer shall be August 12, 1999 (as extended in accordance herewith, the "Expiration Date"), subject to extension as provided below. Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer (except that the Minimum Condition (as hereinafter defined) may not be amended or waived below 51% of the total issued and outstanding shares (other than treasury shares) of Company Common Stock), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent shall be subject only to there being validly tendered and not 6 withdrawn prior to the expiration of the Shares outstanding on a fully-diluted basis Offer, not less than 18,400,000 shares of Company Common Stock (the "Minimum Condition"), (ii) the receipt of cash proceeds which shares represent 68.3% of the Financing total issued and outstanding shares (as defined in Section 4.2(dother than treasury shares) of this Agreement) in an amount sufficient to consummate Company Common Stock on the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent date hereof, 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 set forth in Annex I A hereto. Offeror expressly reserves .
(b) The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to waive any such condition (including the Minimum Conditionthis Agreement, provided that no such waiver of the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser shall decrease not amend or waive the Minimum Condition to be less than sixty-six 51% of the total issued and two-thirds outstanding shares (66 2/3%other than treasury shares) percent), to increase the price per Share payable in the Offer, to extend of Company Common Stock and shall not decrease the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) Price or decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares sought, amend the conditions to be purchased the Offer set forth in the Offer, (iii) Annex A or impose conditions to the Offer in addition to those set forth in Annex I heretoA, without the prior written consent of the Company (ivsuch consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof).
(c) change Notwithstanding Section 1.1(b): (i) Purchaser shall be entitled to and shall, and Parent agrees to cause Purchaser to, extend the Offer (and defer the Expiration Date) for a period ending October 14, 1999, in one or more periods of not more than 10 business days each, if at the initial expiration date of the Offer, or any extension thereof, any condition to the Offer is not satisfied or waived; and (ii)
(A) Purchaser shall be entitled, but shall be under no obligation, to extend the Offer (and to defer the Expiration Date) further for an additional period ending December 14, 1999 (in one or more periods of not more than 10 business days each) following an extension pursuant to clause (i) of this sentence, if at the Expiration Date, as deferred pursuant to clause (i) of this sentence to October 14, 1999: (x) the condition to the Offer set forth in paragraph (ii) of Annex A has not been satisfied or waived; (y) the condition to the Offer set forth in paragraph (iii)(a) of Annex A has not been satisfied or waived (so long as Parent or Purchaser is using its best commercial efforts to cause any such judgment, order or injunction to be vacated or lifted); or (z) the condition to the Offer set forth in paragraph (iii)(e) of Annex A has not been satisfied or waived; and (B) if Purchaser shall not have sent the Company written notice of an extension pursuant to the preceding clause (A) of this Section 1.1(c)(ii) on or before October 8, 1999, Purchaser shall be obligated to extend the Offer as set forth in clause (A) of this Section 1.1(c)(ii) upon written demand of the Company delivered to Purchaser on or before October 12, 1999; and (iii) at the Expiration Date, if all conditions to the Offer in any material respect adverse have been satisfied or waived, and for so long as less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror Purchaser may, in its sole discretion and without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (and defer the initial scheduled expiration date being Expiration Date) for up to an additional 20 business days following commencement in the aggregate (in periods of no more than five business days each). 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 without the consent of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date Company. Any extension of the OfferOffer in accordance herewith shall defer the Expiration Date until the latest date to which the Offer is so extended.
(d) In the event that the Offer is terminated by Purchaser, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect it shall deliver to the Financing Condition, Company a written statement setting forth the consummation applicable provision of Annex A of this Agreement pursuant to which it has elected to terminate the sale of Offer.
(e) As soon as practicable on the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend date the Offer for any period required by any ruleis commenced, regulation, interpretation or position of Parent and Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain (together with all amendments and supplements thereto and including the offer exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 shall include, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will 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 other applicable laws. Parentuntrue 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, Offeror and in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company each agree to promptly correct any information provided by it for use inclusion in the Offer Documents if Documents. Each of Parent and to the extent that it Purchaser shall have become false or misleading in any material respect. Offeror will further take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be
(f) Parent shall provide or cause to be disseminated provided to holders Purchaser all the funds necessary to purchase any shares of Shares, in each case as and Company Common Stock that Purchaser becomes obligated to purchase pursuant to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Merger Agreement (Red Roof Inns Inc), Merger Agreement (Accor Sa /Fi)
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) of Annex I hereto, Parent shall or shall cause Sub toMerger Subsidiary shall, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial public announcement of the Offerterms of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended an offer (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase all of the issued and outstanding shares of common stock, par value $0.005 .001 per shareshare (the "SHARES"), including the associated Rights (defined in Section 4.1(c)), of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 29.25 per ShareShare (including the associated Right), 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 shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any the Shares then owned by Parent or Suband Merger Subsidiary, represents at least ninety (90%) percent 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 on a fully-diluted basis Shares being hereinafter referred to as the "FULLY DILUTED SHARES") (the "Minimum Condition"), (ii) the 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 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 ConditionMINIMUM CONDITION") and (iii) to the other conditions set forth in Annex I hereto. Offeror Parent and Merger Subsidiary expressly reserves reserve the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; providedPROVIDED that, howeverwithout the written consent of the Company, that unless -------- ------- previously approved by no change may be made which changes the Company in writingform of consideration to be paid, Offeror will not (i) decrease decreases the price per Share payable or the number of Shares sought in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I heretoI, changes or waives the Minimum Condition, extends the Offer (iv) except as set forth in the following sentence), or makes any other change the conditions to any condition to the Offer set forth in 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 (vii) amend any other term of the Offer in a manner Annex I which is adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Offeror Merger Subsidiary shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; PROVIDED that Merger Subsidiary may (or, if the conditions set forth in clauses (a), (b), (c), (d) and (i) of Annex I exist, shall) extend the Offer if, at the scheduled expiration date of the Offer or any extension thereof any of the conditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or waived, and Merger Subsidiary may extend the Offer for a further period of time of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in accordance with the terms of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject prior to the terms and conditions expiration date of the OfferOffer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and Sub will each use its reasonable best efforts to takeMerger Subsidiary, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate represents at least 90% of the OfferFully Diluted Shares.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Subsidiary shall (i) file with the SEC (defined below in Section 4.1(a)) a Tender Offer Statement on Schedule 14D-1 14D-l with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, collectively the "Offer DocumentsOFFER DOCUMENTS"). The ) and (ii) cause the Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable lawsto be disseminated to holders of Shares. Parent, Offeror Merger Subsidiary and the Company each agree promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will Parent and Merger Subsidiary agree to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto Schedule 14D-l prior to the filing thereof its being filed with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Platinum Technology International Inc), Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided Subject to the provisions of this Agreement (including, without limitation, Annex A attached hereto), and provided that nothing shall have occurred that would result this Agreement has not been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Article IX hereof, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offerdays, commence as defined in Rule 14d-1(e)(6) (within the meaning of Rule 14d-2 "Business Days") under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with , after the announcement of 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 Merger Sub will commence the Offer, whether Parent or Sub, shall be referred to as the "Offeror."
(i) The obligation of Offeror Merger Sub to accept for payment payment, purchase and to pay for any Shares tendered in pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Annex A attached hereto (ithe "Offer Conditions") (including the condition Offer Condition that there at least that number of Shares equivalent to a majority of the total Shares issued and outstanding on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall be have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) ). Merger Sub expressly reserves the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient right to consummate the transactions contemplated hereby pursuant to modify the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent Offer 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend except that, Merger Sub will not, without the Offer and to make any other changes in the terms and conditions prior written consent of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share amount or change the form of consideration payable in the Offer, (ii) decrease the maximum number of Shares to be purchased sought in the Offer, (iii) impose additional conditions to the Offer in addition to those set forth in Annex I heretoOffer, (iv) change any Offer Condition or amend any other term of the conditions Offer if any such change or amendment would be materially adverse in any respect to the Offer in any material respect adverse to the Companyholders of Shares (other than Parent or Merger Sub), (v) except as provided in the next sentencebelow, extend the Offer, Offer if all of the Offer Conditions have been satisfied or (vi) change amend or waive the form of consideration payable in Minimum Condition.
(ii) Subject to the terms and conditions hereof, the Offer or shall expire at midnight, New York City time, on the date that is twenty (vii20) amend any other term of Business Days after the Offer in a manner adverse to is commenced (within the holders meaning of Rule 14d-2 under the Shares. Notwithstanding Exchange Act) (the foregoing"Scheduled Expiration Date"); provided, Offeror mayhowever, that without the consent of the Company, Merger Sub may (ix) extend the Offer beyond any scheduled expiration date (Offer, if on the initial scheduled expiration date being 20 business days following commencement Scheduled Expiration Date of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, Offer any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer Conditions shall not be have been satisfied or waived, until such time for one (1) or more periods (none of which shall exceed ten (10) Business Days), provided that Merger Sub may not extend the expiration of the Offer past sixty (60) days from the date of this Agreement, unless the waiting period applicable to the transactions contemplated by this Agreement under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as such conditions are satisfied amended (the "HSR Act"), has not terminated or waived and expired in which case Merger Sub may not extend the offer past the date set forth in Section 9.2(i), or (iiy) extend the Offer for any such period as may be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the OfferOffer or (z) extend the Offer for one (1) or more periods (each such period to be for not more than five (5) Business Days and such extensions to be for an aggregate period of not more than fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence) if on such expiration date the Offer Conditions shall have been satisfied or waived, but there shall not have been tendered that number of Shares which would equal more than ninety percent (90%) of the Shares issued and outstanding on a fully- diluted basis. The limitations regarding Parent shall cause Merger Sub to, and agrees to use its best efforts to, consummate the terms Offer as soon as legally permissible, subject to Merger Sub's right to extend the Offer as provided in this Section 1.1(b)(ii).
(iii) Merger Sub agrees that if all of the Offer Conditions are not satisfied on the Scheduled Expiration Date, then, provided that all such conditions are and conditions continue to be reasonably probable of being satisfied by the date that is forty-five (45) days after the commencement of the Offer, as set forth in Merger Sub shall extend the second preceding and Offer for one period of not more than five (5) Business Days if requested to do so by the immediately preceding sentences, Company; provided that Merger Sub shall not be applicable in required to extend the event Offer beyond forty-five (45) days after commencement of the Offer or, if earlier, the date of termination of this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to in accordance with the terms and conditions hereof.
(iv) On the terms of the Offer and subject to the satisfaction or waiver of the Offer Conditions and the terms of this Agreement, Offeror Merger Sub shall accept (A) be obligated to purchase all Shares validly tendered and not withdrawn on the earliest date that all of the Offer Conditions are satisfied or waived and (B) pay for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as soon as practicable after the expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and Notwithstanding any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 provision of this Agreement), the Stock Option Agreement or the Shareholders Agreement, any reference to a majority of the total issued and outstanding shares or Shares, or shares or Shares outstanding on a fully diluted basis, or similar references, shall, for purposes of such agreements, exclude from the determination thereof any shares of Common Stock issuable upon exercise of or subject to the Stock Option Agreement and any reference to beneficial ownership of shares of Common Stock or similar references shall, for purposes of such agreements, exclude from the determination thereof any shares of Common Stock issuable upon exercise of or subject to the Stock Option Agreement and/or the Shareholders Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dupont E I De Nemours & Co)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure Subject to satisfy any the provisions of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tothis Agreement, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offerexecution of this Agreement, 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 (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 the Purchaser to, and of Parent to cause the Purchaser to, accept for payment payment, and pay for, any shares of Common Stock tendered pursuant to pay for any Shares tendered in the Offer shall be subject only to the (i) the condition that there shall be validly tendered Minimum Condition (as defined in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"Annex A), (ii) the receipt of cash proceeds of condition that the Purchaser shall have received the Financing (as defined in Section 4.2(dbelow) contemplated by the commitment letter dated September 11, 1997 (the "Financing Commitment Letter"), pursuant to which, subject to certain terms --------------------------- and conditions thereof, the lenders named therein have committed to provide all of this Agreementthe Financing (the "Financing") in an amount sufficient necessary to consummate the Offering and the --------- Merger and the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I heretoA attached hereto and to the other conditions of this Agreement. Offeror On the terms and subject to the conditions of the Offer and this Agreement, the Purchaser shall, and Parent shall cause the Purchaser to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that the Purchaser becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. The Purchaser expressly reserves the right in its sole discretion to waive any such condition (including modify the Minimum Condition, provided that no such waiver terms of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make waive any other changes in the terms and conditions condition of the Offer; provided, howeverexcept that, that unless -------- ------- previously approved by without the Company in writingconsent of the Company, Offeror will the Purchaser shall not (i) decrease reduce the price per Share payable in number of shares of Common Stock subject to the Offer, (ii) decrease reduce the maximum number price per share of Shares Common Stock to be purchased in paid pursuant to the Offer, (iii) impose conditions modify or add to the Offer in addition to those conditions set forth in Annex I hereto, (iv) change the conditions to A or otherwise amend the Offer in any material respect manner materially adverse to the Company's stockholders, (viv) except as provided in the next sentencetwo sentences, extend the Offer, or (viv) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Offeror the Purchaser may, without the consent of the Company, (i) extend the Offer for a period of not more than 10 business days beyond any scheduled the initial expiration date of the Offer (the which initial scheduled expiration date being shall be 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998), if at any scheduled expiration on the date of such extension less than 90% of the outstanding shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (ii) extend the Offer from time to time if at the initial expiration date or any extension thereof the Minimum Condition or any of the other conditions to Offerorthe Purchaser's obligation to accept for paymentpurchase shares of Common Stock set forth in paragraphs (a), (b) and pay for, Shares (including, with respect to the Financing Condition, the consummation e) of the sale of the Senior Notes (as defined in Section 4.2(d)) Annex A shall not be satisfied or waived, until such time as such conditions are satisfied or waived and waived, (iiiii) 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 OfferOffer and (iv) extend the Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. The limitations regarding In addition, the terms and conditions Purchaser shall at the request of the Offer, as set forth in Company extend the second preceding and Offer for five business days if at any scheduled expiration date of the immediately preceding sentences, Offer any of the conditions to the Purchaser's obligation to purchase shares of Common Stock shall not be applicable in satisfied; provided, however, that the event this Agreement is terminated pursuant Purchaser shall not be required to Section 8.1(d) of this Agreement. Subject to the terms and conditions of extend the Offer and this Agreementbeyond November 30, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer1997.
(b) As soon as practicable on the date of the commencement of Offer is commenced, Parent and the Offer, Offeror Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-l"). The Schedule -------------- 14D-1 will contain include disclosure sufficient to satisfy the requirements of Rule 13e-3 under the Exchange Act. The Schedule 14D-1 will include, as exhibits, the offer to purchase pursuant to which the Offer shall be made (the "Offer to -------- Purchase") and a form of the related letter of transmittal and summary advertisement -------- (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer ----- Documents"). The Offer Documents will 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 other 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 furnished by the Company to Parent or the Purchaser, in writing, expressly for inclusion in the Offer Documents. The Company shall furnish to Parent and the Purchaser all information concerning the Company and its affiliates required to be set forth in the Offer Documents. The information supplied by the Company to Parent or the Purchaser, in writing, expressly for inclusion in the Offer Documents and by Parent or the Purchaser to the Company, in writing, expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not, at the time so provided, contain any untrue statement of a material fact or omit to state any material fact re- quired 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.
(c) Each of Parent and the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Offeror Each of Parent and the Company each agree to Purchaser, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror respect and the Purchaser will 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 the Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof Schedule 14D-1 (including, without limitation, all documents filed therewith as exhibits) before it is filed with the SEC; provided that Offeror will attempt to give . In addition, Parent and the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror Purchaser will provide the Company and its counsel in writing with any comments Offeror and its comments, whether written or oral, Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
The Offer. (a) (i) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article VIII and that would result in a failure to satisfy any none of the conditions events set forth in paragraphs Paragraph (a) through (i2) of Annex I heretoExhibit A hereto shall exist or have occurred and be continuing, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, use reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) a tender offer prior to the fifth (as amended from 5th) Business Day after the date hereof (but in no event later than the tenth (10th) Business Day after the date hereof, provided that the Company shall be prepared to disseminate to its shareholders its Schedule 14d-9 and Schedule 14f-1 within such time to time in accordance with this Agreement, period) the "Offer") Offer to purchase all outstanding Shares at the Offer Price. The obligations of the issued Purchaser (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 Parent 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 cause Purchaser) to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I heretoExhibit A hereto (the “Offer Conditions”). Offeror The initial expiration date (the “Initial Expiration Date”) of the Offer shall be the twentieth (20th) Business Day following (and including the day of) the commencement of the Offer. Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any such condition (including Offer Condition or modify or amend the Minimum Condition, provided that no such waiver terms of the Minimum Condition Offer, except that, without the prior written consent of the Company, Purchaser shall not decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase Offer Price or change the price per Share form of the consideration payable in the Offer, or, except pursuant to extend the Offer and to make any other changes in the terms and conditions of the Offer; providedSection 1.1(b), however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (iA) decrease the price per Share payable in number of Shares sought pursuant to the Offer, (iiB) decrease amend or waive the maximum number of Shares to be purchased Minimum Tender Condition (as defined in the OfferExhibit A), (iiiC) impose conditions add to the Offer in addition to those conditions set forth in Annex I heretoon Exhibit A, (ivD) change modify the conditions to the Offer in 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 (vii) amend any other term of the Offer set forth on Exhibit A in a manner that is adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, Shares or (iE) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (Offer except as defined in required or permitted by Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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"1.1(a)(ii) or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreementiii).
Appears in 2 contracts
Sources: Merger Agreement (Genelabs Technologies Inc /Ca), Merger Agreement (Glaxosmithkline PLC)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any So long as none of the conditions events set forth in paragraphs clauses (a) through (ig) of Annex I heretohereto shall have occurred or exist, the Purchaser shall, and Parent shall or shall cause Sub the Purchaser to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time 2 promptly as practicable after the date hereof, but in accordance with this Agreementany event not later than December 18, 1997, the "Offer") Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "such 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 initial expiration date for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered twentieth business day from and after the date the Offer is commenced, including the date of commencement as the first business day in accordance with Rule 14d-2 under the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis Exchange Act (the "Minimum ConditionInitial Expiration Date"), (ii) the receipt of cash proceeds of the Financing (. As promptly 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Conditionpracticable, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and together with respect the documents therein pursuant to which the Offer which will contain the offer to purchase be made, and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The , which shall contain (as an exhibit thereto) the Purchaser's Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and to Purchase (the Company each agree "Offer to promptly correct any information provided by it for use in the Offer Documents if and Purchase") which shall be mailed to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff Shares with respect to the Offer. The obligation of Parent and the Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer Documents promptly will be subject only to the satisfaction or waiver of the conditions set forth in Annex I hereto. Without the prior written consent of the Company, the Purchaser shall not (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer (except as otherwise set forth in Section 1.01(b) hereof), (iii) change the conditions set forth in Annex I, (iv) extend the expiration date of the Offer (except as required by applicable rules and regulations of the SEC and except that Purchaser may in its discretion extend the expiration date of the Offer for up to 10 business days after the receipt thereof. In Initial Expiration Date, and may extend the Offer thereafter for longer periods (not to exceed 90 calendar days from the date of commencement (unless, in the Company's sole discretion, the Company requests that the expiration date of the Offer be further extended, up to a maximum of 120 calendar days) from the date of commencement in the event that any condition to the Offer is terminated not satisfied or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreementwaived).
Appears in 2 contracts
Sources: Merger Agreement (Impact Systems Inc /Ca/), Merger Agreement (Voith Sulzer Acquisition Corp)
The Offer. (a) Provided that nothing shall have occurred that would result in a the failure to satisfy of any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toand Purchaser shall, as promptly as practicable following the date hereof, but hereof and in no any event not later than five business days after the initial public announcement of the OfferMarch 20, 1998, commence (within their Offer to purchase the meaning Shares at a price equal to the Purchase Price. The Offer shall be made by means of Rule 14d-2 under the Securities Exchange Act of 1934, as amended an offer to purchase (the "Exchange Act")) Offer to Purchase" and, together with a tender offer (as amended from time to time in accordance with this Agreementletter of transmittal relating thereto, the "OfferOffer Documents") 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 solely to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a that number of Shares which, together with when added to any Shares then owned by Parent or Subacquired pursuant to the Stock Purchase Agreements simultaneously with the acceptance of Shares pursuant to the Offer, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the 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 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) to the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition hereto (including the Minimum Conditionexpiration of applicable waiting periods under the HSR Act (as hereinafter defined)). For purposes of this Agreement, provided "fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding Options (as defined below). As soon as practicable, Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Schedule 14D-1 (which schedule, together with all amendments and supplements thereto, is hereinafter referred to as the "Schedule 14D-1") with respect to the Offer. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 (as defined below) before it is filed with the SEC. In addition, Parent and Purchaser agree to provide the Company and its counsel with any comments, whether written or oral, that no Parent and/or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-1 promptly after the receipt of such waiver comments or other communications. Without the prior written consent of the Minimum Condition Company, neither Parent nor Purchaser shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, impose additional conditions to the Offer or (vii) amend any other term of the Offer in a any manner materially adverse to the holders of the Shares. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of all the conditions of the Offer set forth in Annex I hereto as of any expiration date of the Offer, Parent and/or Purchaser will accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Notwithstanding the foregoing, Offeror Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond any the then scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998), if at any the then scheduled expiration date of the Offer, Offer any of the conditions to OfferorPurchaser's obligation to accept for payment, payment and pay for, for the Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and waived, (ii) increase the Purchase Price and extend the Offer for any period required by any rule, regulation, interpretation or position provision of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer. The limitations regarding Offer and (iii) extend the terms and conditions Offer for an aggregate period of not more than 10 business days beyond the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not latest expiration date that would otherwise be applicable in the event this Agreement is terminated pursuant to Section 8.1(dpermitted under clause (i) or (ii) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror sentence if there shall accept for payment , and pay for, all Shares validly not have been tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration at least 90% of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offeroutstanding Shares.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will 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 other applicable lawsuntrue 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 made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. ParentEach of Parent and Purchaser, Offeror on the one hand, and the Company each agree Company, on the other hand, agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any (i) none of the conditions events set forth in paragraphs (ab) through and (id) of Annex I heretoto this Agreement shall have occurred and be existing, Parent (ii) the Company shall or have complied with its obligations under Section 2.03(c) and Section 2.03(d) and (iii) this Agreement shall cause Sub tonot have previously been validly terminated in accordance with Section 10.01, as promptly as practicable following the date hereofreasonably practicable, but in no event later than five twelve (12) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the initial public announcement date of the Offerthis Agreement, Parent shall cause Purchaser to, and Purchaser shall, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase Offer for all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company Common Shares (the "Shares" or "other than Company Common Stock"Shares described in Section 4.01(a), at ) for a price of not less than $10.50 per Share, net Company Common Share equal to the seller Offer Price (as adjusted as provided in cashSection 2.01(f)). For purposes of this Article I, the party The date on which makes Purchaser commences the Offer, whether Parent or Subwithin the meaning of Rule 14d-2 promulgated under the Exchange Act, shall be is referred to in this Agreement as the "Offeror“Offer Commencement Date”." The obligation
(b) As promptly as practicable on the later of: (i) the earliest date as of Offeror which Purchaser is permitted under applicable Law to accept for payment and to pay for any Company Common Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Purchaser shall (and Parent shall cause Purchaser to), except as contemplated by Section 2.01(d)(iv), accept for payment all Company Common Shares tendered pursuant to the Offer (and not validly withdrawn). The obligation of Purchaser to accept for payment Company Common Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the acceptance for payment of any Company Common Shares tendered pursuant to the Offer, Purchaser shall pay for such Company Common Shares.
(c) Parent and Purchaser expressly reserve the right to increase the Offer Price, waive any Offer Condition or amend, modify or supplement any of the Offer Conditions or terms of the Offer. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Purchaser shall (without the prior written consent of the Company):
(i) change or waive the condition that there shall Minimum Condition (as defined in Annex I);
(ii) decrease the number of Company Common Shares sought to be validly tendered purchased by Purchaser in accordance with the terms of Offer;
(iii) reduce the Offer prior to Price;
(iv) extend or otherwise change the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent (except to the extent permitted or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 required pursuant to the terms of the Commitments (as defined in said Section 4.2(d2.01(d)) or 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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
(vi) amend, modify or supplement any of the Offer Conditions or (vii) amend any other term terms of the Offer in a manner adverse that adversely affects, or would reasonably be expected to adversely affect, the holders of Company Common Shares.
(d) Unless extended as provided in this Agreement, the SharesOffer shall expire on the date (the “Initial Expiration Date”) that is twenty (20) business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act ) after the Offer Commencement Date. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or 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") SEC or the its staff thereof or Nasdaq that is applicable to the Offer. The limitations regarding ; provided, that in no event shall Purchaser be required to extend the terms and conditions Offer beyond the Outside Date, (ii) if, on the Initial Expiration Date or any subsequent date as of which the OfferOffer is scheduled to expire (an “Extended Expiration Date”), as set forth the Minimum Condition or the Regulatory Condition is not satisfied, then, to the extent requested in writing by the second preceding and Company no less than two (2) business days prior to the immediately preceding sentencesapplicable expiration date, Purchaser shall extend the Offer for one or more periods ending no later than the Outside Date, to permit either of such Offer Conditions to be satisfied; provided, that no individual extension shall be for a period of more than ten (10) business days and, provided further that Purchaser shall not be applicable required to extend the Offer under this clause (ii) to a date beyond the date which is twenty (20) business days after the date on which the Regulatory Condition is satisfied, (iii) if, on the Initial Expiration Date or any Extended Expiration Date, any Offer Condition is not satisfied and this Agreement has not been terminated in accordance with its terms, Purchaser may, in its discretion, extend the Offer for one or more periods, (iv) if the Company shall have requested in writing no less than two (2) business days prior to the Initial Expiration Date, Purchaser shall extend the Offer for the period of time stated in the event this Agreement is terminated pursuant Company’s written request (which period shall not exceed ten (10) business days beyond the Initial Expiration Date) notwithstanding the satisfaction or waiver of all of the Offer Conditions on or prior to Section 8.1(dthe Initial Expiration Date and (v) Purchaser may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 promulgated under the Exchange Act following the Acceptance Time, and, if immediately following the Acceptance Time, Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% but less than 90% of this Agreementthe Company Common Shares outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn), to the extent reasonably requested by the Company, Purchaser shall provide for a subsequent offering period of at least ten (10) business days. Subject to the terms and conditions of set forth in this Agreement and the Offer Offer, Parent shall cause Purchaser to, and this AgreementPurchaser shall, Offeror shall accept for payment , and pay for, for all Company Common Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer during such subsequent offering period as soon promptly as practicable after expiration of the Offer, subject to any such Company Common Shares are tendered during such subsequent offering period and in any event in compliance with Rule 14e-1(c) promulgated under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(be) As soon The Offer may be terminated prior to its expiration date (as practicable such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 10.01.
(f) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Company Common Shares occurring or having a record date on or after the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase this Agreement and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with payment by Purchaser for the SECCompany Common Shares; provided that Offeror will attempt to give this subsection (f) shall not affect or supersede the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders provisions of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)5.01(b) hereof.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Cnet Networks Inc), Merger Agreement (CBS Corp)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following after the date hereof, but in no event later than five the fifth business days day after the initial public announcement of the Offerexecution of this Agreement, Parent shall cause Merger Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934), as amended and Merger Subsidiary shall commence, an offer (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase for cash all of the issued and outstanding shares shares, together with the associated rights to purchase Series B Participating Cumulative Preferred Stock ( collectively, the "SHARES") of common stock, $.00l par value $0.005 per share, of the Company (the "Shares" or COMMON STOCK"Common Stock"), ) at a price of not less than $10.50 20 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to as the "Offeror." OFFER PRICE"). The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject to only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I hereto. Offeror expressly reserves the right A (any of which may be waived by Merger Subsidiary in its sole discretion to waive any such condition (including the Minimum Condition, discretion; provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror maythat, without the consent of the Company, (i) extend Merger Subsidiary shall not waive the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes Minimum Tender Condition (as defined in Section 4.2(dAnnex A)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer).
(b) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Subsidiary shall file with the SEC Securities and Exchange Commission (the "SEC") with respect to the Offer a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer DocumentsSCHEDULE 14D-1"). The Offer Documents , which will comply in all material respects with the provisions of applicable federal securities laws and will contain the offer to purchase relating to the Offer (the "OFFER TO PURCHASE") and forms of related letters of transmittal and summary advertisement (which documents, together with any other applicable lawssupplements or amendments thereto, are referred to herein collectively as the "OFFER Documents"). Parent, Offeror Parent will deliver copies of the proposed forms of the Schedule 14D-1 and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and (as well as any change thereto) to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary Company within a reasonable time prior to cause the commencement of the Offer Documents as so corrected 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 federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to for prompt review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give by the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstancescounsel. Offeror Parent will provide the Company and its counsel with in writing any comments Offeror and its that Merger Subsidiary, Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In Parent and Merger Subsidiary represent that the event that Schedule 14D-1 and the Offer Documents (including any amendments or supplements thereto) (i) shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "EXCHANGE ACT") and (ii) shall not, in the 6 case of the Schedule 14D-1 at the time filed with the SEC and at the time the Offer is terminated consummated and in the case of the Offer Documents when first published, sent or withdrawn by Offerorgiven to the stockholders of the Company and at the time the Offer is consummated, 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 are made, not misleading; provided, however, that Parent and Sub Merger Subsidiary make no covenant, representation or warranty as to any of the information relating to and supplied by the Company in writing specifically for inclusion in the Schedule 14D-1 or the Offer Documents (including any amendments or supplements thereto). Parent and Merger Subsidiary shall promptly correct any information in the Schedule 14D-1 or the Offer Documents that shall have become false or misleading in any material respect and take all steps necessary to cause all tendered Shares such Schedule 14D-1 or Offer Documents as so corrected to be returned filed with the SEC and disseminated to the registered stockholders of the Company, as and to the extent required by applicable law. Parent and Merger Subsidiary will provide copies of any amendments or supplements to the Offer Documents or the Schedule 14D-1 to the Company prior to any filing of such amendments or supplements with the SEC in order to provide the Company and its counsel with a reasonable opportunity to review and comment thereon.
(c) Each of Parent and Merger Subsidiary expressly reserves the right to modify the terms of the Offer, except that neither Parent nor Merger Subsidiary shall, without the prior written consent of the Company, decrease the consideration payable in the Offer, change the form of consideration payable in the Offer, decrease the number of Shares sought pursuant to the Offer, change or modify the conditions to the Offer in a manner adverse to the Company or holders of the Shares represented by the certificate or certificates surrendered Shares, impose additional conditions to the Exchange Agent Offer, waive the Minimum Tender Condition, or amend any term of the Offer in any manner adverse to the Company or holders of Shares. Notwithstanding the foregoing, Merger Subsidiary, without the consent of the Company, (i) must extend the Offer for an aggregate of 10 additional business days after the then scheduled expiration date of the Offer to the extent necessary to permit such condition to be satisfied (the "FIRST EXTENSION PERIOD"), (ii) may extend the Offer, if at the end of the First Extension Period any of the conditions to Merger Subsidiary's obligation to accept for payment and pay for Shares shall not have been satisfied, until such time as defined such condition is satisfied or waived and (iii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer.
(d) Parent will provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to accept for payment, and pay for, Shares that Merger Subsidiary becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Merger Subsidiary shall accept for payment, and pay for, Shares in Section 3.3 accordance with the Offer, subject to the satisfaction or waiver of this Agreement)the conditions to the Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (JLG Industries Inc), Merger Agreement (Gradall Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Section 8.1 and none of the conditions events set forth in paragraphs paragraph (a) through (i2)(iii) of Annex I hereto, Parent shall exist or shall cause Sub tohave occurred and be continuing, as promptly as practicable following (and in any event within 10 Business Days) after the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the Offer, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act Act) the Offer to purchase for cash all outstanding Shares at the Offer Price.
(b) Subject to the terms and conditions of 1934this Agreement and the Offer, promptly after the latest of (i) the earliest date as amended of which Purchaser is permitted under applicable law to accept for payment Shares validly tendered and not withdrawn pursuant to the Offer, (ii) the earliest date as of which each of the conditions and requirements set forth in Annex I (the "Exchange Act")“Offer Conditions”) a tender offer has been satisfied, or waived by Parent or Purchaser, and (as amended from time to time iii) the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with this Agreement, its terms and accept for payment and pay for all Shares (without interest) validly tendered and not withdrawn pursuant to the "Offer") Offer that Purchaser becomes obligated 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 pursuant to the seller in cashOffer. 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 Purchaser to accept for payment and to pay for any Shares (without interest) tendered in and not withdrawn pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction, or waiver by Parent or Purchaser, of each of the Offer prior Conditions.
(c) The Offer shall be made by means of an offer to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis purchase (the "Minimum Condition")“Offer to Purchase”) that contains, (ii) the 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 among other things, the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in this Agreement, the Commitments (the "Financing Condition") Minimum Condition and (iii) the other conditions and requirements set forth in Annex I hereto. Offeror I. Parent and Purchaser expressly reserves reserve the right in its sole discretion to (x) increase the Offer Price and (y) to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six Offer Conditions and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in to the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved otherwise provided by this Agreement, without the Company in writingprior written consent of the Company, Offeror will not neither Parent nor Purchaser shall (i) decrease the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 Offer, (iii) decrease the number of Shares sought to be purchased in the Offer, (iv) impose additional conditions to the Offer, (v) except as required by any Governmental Entity, amend or (vii) amend modify any other term of the Offer terms in a manner adverse to the holders of Shares, (vi) change or waive the Shares. Notwithstanding Minimum Condition or (vii) extend or otherwise change the foregoingexpiration date of the Offer other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, Offeror the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, is referred to as the “Expiration Date”).
(e) The Offer may be extended from time to time as follows:
(i) If, on or prior to any then scheduled Expiration Date, all of the Offer Conditions (including the Minimum Condition and all other Offer Conditions) shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and Parent shall cause Purchaser to), at the request of the Company, extend the Offer for one or more successive periods of not more than 10 Business Days in order to permit the satisfaction of such conditions, each until the earlier of (x) the termination of this Agreement pursuant to Section 8.1 and (y) (A) the date that is 180 days after commencement of the Offer (the “Initial Outside Date”) or (B) the date that is 270 days after commencement of the Offer in the event that the HSR Condition or the Governmental Approval Condition shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, by the Initial Outside Date (the “Extended Outside Date”), if any such extension of not more than 10 Business Days would otherwise end after the Initial Outside Date or the Extended Outside Date, as applicable;
(ii) Purchaser may, in its sole discretion, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement for one or more successive periods of the Offer) for a period not to extend beyond July 31, 1998more than 10 Business Days each, if at any otherwise scheduled expiration date of the Offer, Expiration Date any of the conditions to Offeror's obligation to accept for paymentOffer Conditions shall have not been satisfied, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and by Parent or Purchaser if permitted hereunder; and
(iiiii) Purchaser shall extend the Offer for any period or periods required by any applicable law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the its staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offeror Nasdaq or its staff.
(f) Purchaser may, as set forth in the second preceding and the immediately preceding sentencesits sole discretion, shall not be applicable provide for a “subsequent offering period” in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance accordance with Rule 14e-1(c) 14d-11 promulgated under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and Sub will each use its reasonable best efforts to take, or cause to be takenpay for, all actions Shares that are validly tendered and not withdrawn pursuant to dothe Offer during any such “subsequent offering period” promptly after any such Shares are tendered during such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1 or as required by applicable law. In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly terminate the Offer and shall not acquire any Shares pursuant to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(bh) As soon as practicable on On the date of the commencement of the OfferOffer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Offeror Purchaser shall (and Parent shall cause Purchaser to) file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) that will contain comply in all material respects with the offer provisions of all applicable Federal and other securities Laws. The Schedule TO shall include, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Parent and Purchaser shall take all steps necessary to cause the Offer Documents will comply to be filed with the SEC and disseminated to holders of the Shares, in all material respects with applicable federal securities laws each case as and any other applicable lawsto the extent required by the Exchange Act. Each of Parent, Offeror Purchaser and the Company each agree to shall correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable law. Offeror will Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Documents, as so corrected (if applicable), to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable lawsthe Exchange Act. The Company and its counsel shall be given an a reasonable opportunity to review the Schedule TO and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt , and Parent and Purchaser shall give due consideration to give all reasonable additions, deletions or changes suggested thereto by the Company and its counsel as much time prior to filing to so review counsel. In addition, Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Purchaser shall provide the Company and its counsel with copies of any comments Offeror written comments, and its shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. Parent and Purchaser shall give the receipt thereofCompany and its counsel a reasonable opportunity to review any such written responses and shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In Parent and Purchaser shall use their reasonable best efforts to respond promptly to any comments of the event that SEC or its staff with respect to the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of the Company Recommendation, as such Company Recommendation may be amended and until such Company Recommendation may be withdrawn, in each case as permitted by this Agreement. If Purchaser terminates or withdraws the Offer, or this Agreement is terminated or withdrawn by Offerorprior to the purchase of Shares in the Offer, Parent Purchaser shall promptly return, and Sub shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to be returned to the registered holders thereof.
(i) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination or other like change with respect to Common Stock occurring on or after the Shares represented by the certificate or certificates surrendered date of this Agreement and prior to the Exchange Agent time Purchaser accepts for payment and pays for any Shares tendered and not withdrawn pursuant to the Offer (as defined in Section 3.3 of this Agreementthe “Acceptance Time”), if any.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
The Offer. (a) Provided that nothing this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of or be existing, Purchaser shall commence the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, Offer as promptly as reasonably practicable following after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds that at least a majority of the Financing (as defined in Section 4.2(d) then outstanding ----------------- Shares, other than Shares owned beneficially by or of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the terms expiration of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent Offer and also shall be subject to the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) satisfaction of the other conditions set forth in Annex I A hereto. Offeror Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that unless the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease change may be made which decreases the price per Share payable in the Offer, (ii) decrease Offer or which reduces the maximum number of Shares to be purchased in the Offer, (iii) impose Offer or which imposes conditions to the Offer in addition to those set forth in Annex I A hereto. The Per Share Amount shall, (iv) change the conditions subject to applicable withholding of taxes, be net to the Offer seller in any material respect adverse to the Companycash, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding upon the terms and subject to the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to takePurchaser shall pay, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As soon promptly as reasonably practicable on the date of the commencement of the Offer, Offeror Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer which will and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain the or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and form forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Gambro, Parent, Offeror Purchaser and the --------------- Company each agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it which shall have become false or misleading in any material respect. Offeror will misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Ren Corp Usa), Merger Agreement (Cobe Laboratories Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoand be continuing, Parent Purchaser shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer the Offer as promptly as practicable (as amended from time to time and in accordance with this Agreement, any event not later than ten (10) business days) following the "Offer") to purchase all date hereof. The obligations 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 Purchaser to accept for payment and to pay for any Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a that number of Shares which, together with any the Shares then actually owned by Parent Yahoo! or SubPurchaser or any direct or indirect wholly owned subsidiary of Yahoo!, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-diluted basis Fully Diluted Basis (the "Minimum Condition"), ; and (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves For purposes of the right foregoing, "Fully Diluted Basis" shall refer to the number of Shares issued and outstanding at any time after taking into account all Shares issuable upon the conversion of Launch convertible securities or upon the exercise of any options, warrants or rights to purchase shares of Launch capital stock that could vest within 90 days of the time of determination and in its sole discretion each case that have a conversion or exercise price per share less than the Offer Price. Subject to waive any such condition (including the Minimum Condition, provided that no such prior satisfaction or waiver by Yahoo! or Purchaser of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to Purchaser shall consummate the Offer in any material respect adverse accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the CompanyOffer. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that contains the terms set forth in this Agreement, (v) except as provided the Minimum Condition and the other conditions set forth in Annex I hereto. Purchaser shall not, and Yahoo! shall cause Purchaser not to, decrease the next sentenceOffer Price, extend the Offer, (vi) change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer (the "Initial Expiration Date") except as set forth below, or (vii) amend any other term condition of the Offer in a any manner adverse to the holders of the Shares, in each case without the prior written consent of Launch (such consent to be authorized by Launch's Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror Purchaser may, without the consent of the CompanyLaunch, (i) extend the Offer beyond any the Initial Expiration Date for the shortest time periods which it reasonably believes are necessary, in one or more such periods, but in no event more than an additional fifteen (15) business days, if, at the scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, Yahoo! and Purchaser shall not be in material breach of this Agreement and any of the conditions to OfferorPurchaser's obligation to accept Shares for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and such condition is reasonably capable of being satisfied, or (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer. The limitations regarding Purchaser may, without the terms and conditions consent of the OfferLaunch, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of extend the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant a subsequent offering period of up to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance twenty (20) business days in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject In addition, the Offer Price may be increased and the Offer may be extended to the terms and conditions extent required by law in connection with such increase, in each case without the consent of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferLaunch.
(b) As soon as practicable on On the date of the commencement of the OfferOffer is commenced, Offeror Yahoo! and Purchaser shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act ("Regulation M-A"), a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer "Schedule TO"). The Schedule TO shall include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Yahoo! and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Yahoo! and Purchaser agree to take all steps necessary to ensure that (i) the Offer Documents will comply in all material respects with the provisions of the Exchange Act, the rules and regulations thereunder and other applicable federal securities laws laws; and (ii) the Offer Documents shall not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by Yahoo! or Purchaser with respect to information furnished by Launch expressly for inclusion in the Offer Documents. Yahoo! and Purchaser, on the one hand, and Launch, on the other applicable laws. Parenthand, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respectrespect or as otherwise required by law. Offeror will Yahoo! and Purchaser further agree to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company Launch and its counsel shall be given an a reasonable opportunity to review and comment on upon the Offer Documents and any amendments thereto prior to the filing thereof Schedule TO before it is filed with the SEC; provided that Offeror will attempt . In addition, Yahoo! and Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company Launch and its counsel with any comments Offeror and its comments, whether written or oral, that Yahoo!, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Yahoo!'s or Purchaser's, as the case may be, receipt thereof. In the event that the Offer is terminated of such comments, and any written or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)oral responses thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Section 8.1, the Purchaser (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 conditions set forth in paragraphs (a) through (i) of Annex I heretotransactions contemplated hereby, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event and not later than five business days after the initial public announcement execution of the Offerthis Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an 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"), Shares at a price of not less than $10.50 10.00 per ShareShare (the "Per Share Price"), 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 cash (the "Offeror.Offer," The obligation which term shall include any amendments to such Offer not prohibited by this Agreement) and, subject to a minimum 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 shall be validly tendered in accordance with the terms not less than a majority of the Offer prior to the expiration date of the Offer and not withdrawn a number of outstanding Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis excluding Out of the Money Options (as defined below)) being validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"), (ii) the 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 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 further conditions set forth in this Agreement and Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Conditionof this Agreement, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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, payment and pay for, for Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 purchased pursuant to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions initial expiration date of the Offer and this Agreementshall be May 18, Offeror 1998. Parent shall provide or cause to be provided to the Purchaser on a timely basis the funds necessary to accept for payment , and pay for, all for any Shares validly tendered and not withdrawn pursuant to that the Offer that Offeror Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject and shall cause the Purchaser and the Merger Sub to compliance fulfill all of their respective other obligations under this Agreement. The Offer shall be made by means of an offer to purchase containing the Minimum Condition and the further conditions set forth in this Agreement and Annex I. Simultaneously with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror the Purchaser shall file with the SEC Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all amendments and supplements or amendments thereto and including exhibits theretohereto, the "Offer DocumentsSchedule 14D-1"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws, which shall have been provided to the Company such that the Company shall have a reasonable opportunity to promptly comment thereon. Parent, Offeror the Purchaser and the Company each Merger Sub agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its the Parent, the Purchaser or the Merger Sub or their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents Schedule 14D-1 promptly after the receipt thereofof such comments. In For purposes of this Agreement, "Out of the event that Money Options" shall mean any option, warrant or other contractual right to purchase shares of the Common Stock of the Company which as of the date hereof have an exercise price per Share of Common Stock equal to or greater than the Per Share Price.
(b) The Purchaser expressly reserves the right to modify the terms and conditions of the Offer is terminated or withdrawn by Offerorfrom time to time, Parent and Sub except that, without the prior written approval of the Company, the Purchaser shall cause all tendered not amend the Offer (i) to reduce the cash price per Share to be paid pursuant thereto, (ii) to reduce the number of Shares to be returned purchased thereunder, (iii) to change the registered holders form of consideration to be paid in the Offer, (iv) to increase the minimum number of Shares represented by the certificate or certificates surrendered which must be tendered as a condition to the Exchange Agent (as defined in Section 3.3 of this Agreement).the
Appears in 2 contracts
Sources: Merger Agreement (S Acquisition Corp), Merger Agreement (Simulation Sciences Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in give rise to a failure right to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoterminate this Agreement pursuant to Article 8, Parent Buyer shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act ▇▇▇▇ ▇▇▇) the Offer as promptly as reasonably practicable after the date of 1934, as amended this Agreement but in no event later than the fifteenth (15th) Business Day following the "Exchange Act")) a tender offer (as amended from time to time in accordance with date of this Agreement, the "Offer") to purchase all . The obligations 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 Buyer to accept for payment payment, and to pay for for, any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of satisfaction or waiver (to the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of extent permitted under 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 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 set forth in Annex I hereto(the “Offer Conditions”). Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend The date on which Buyer commences the Offer and is referred to make any other changes in as the “Offer Commencement Date.”
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the Offer Conditions, Buyer shall (and Parent shall cause Buyer to) (i) at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the ▇▇▇▇ ▇▇▇) thereafter), pay (by delivery of funds to the depositary for the Offer) for, all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing”). The date on which the Closing occurs is referred to in this Agreement as the “Closing Date.” The Offer Consideration payable in respect of each Share pursuant to the preceding sentence shall be paid, net of any applicable Tax withholding with respect to the Offer Consideration pursuant to Section 2.10, to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided, howeverthat without the prior written consent of the Company, that unless -------- ------- previously approved by the Company in writing, Offeror will Buyer shall not (and Parent shall cause Buyer to not):
(i) decrease waive or change the price per Share payable in Minimum Condition (except to the Offer, extent contemplated under paragraph (A) of Annex I);
(ii) decrease the maximum number of Shares to be purchased in the Offer, Offer Consideration;
(iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or (vii) amend otherwise amend, modify or supplement any other term of the Offer Conditions or terms of the Offer in a manner adverse to the holders of Shares.
(d) The Offer shall initially expire at 9:00 a.m. (New York City time), or at such other time as the Shares. Notwithstanding Parties may mutually agree, on the foregoing, Offeror may, without date that is the consent later of the Company, (i) extend twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Offer beyond any scheduled expiration date (▇▇▇▇ ▇▇▇) following the initial scheduled expiration date being 20 business days following commencement of the OfferOffer and (ii) for a period not to extend beyond July 31, 1998, if at any scheduled such date as is six (6) Business Days after the date of the EGM (such initial expiration date and time of the Offer, any of the conditions “Initial Expiration Time”) or, if the Offer has been extended pursuant to Offeror's obligation to accept for payment, and pay for, Shares (including, in accordance with respect to the Financing ConditionSection 2.01(e), the consummation of date and time to which the sale of Offer has been so extended (the Senior Notes Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article 8, Buyer may or shall, as defined in Section 4.2(d)) shall not be satisfied or waivedapplicable, until such time as such conditions are satisfied or waived and (ii) extend the Offer from time to time as follows:
(i) for any the minimum period as required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (SEC, the "SEC") staff thereof, the NASDAQ or the staff thereof NYSE as applicable to the Offer. The limitations regarding ;
(ii) if, at the terms and conditions then-scheduled Expiration Time, any of the OfferOffer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is not prohibited under this Agreement or applicable Law), then Buyer shall extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent, Buyer and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time, the Offer Condition set forth in paragraph (B) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer shall be permitted to extend the second preceding and the immediately preceding sentencesOffer on such occasion for up to twenty (20) Business Days; provided, further, however, that (x) Buyer shall not be applicable in required to extend the event this Agreement is terminated Offer to a date later than the End Date (as the End Date may be extended pursuant to Section 8.1(d8.01(b)(i)), (y) if the sole then-unsatisfied Offer Condition is the Minimum Condition and the Pre-Wired Asset Sale Ruling has been obtained or it becomes apparent to Parent, in its reasonable judgment, that the Pre-Wired Asset Sale Ruling will not be received, Buyer shall not be required to extend the Offer on more than two (2) occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent, Buyer and the Company) and (z) Buyer shall not be required to extend the Offer at any time that Parent or Buyer is permitted to terminate this Agreement. Subject ; or
(iii) to the terms such other date and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer time as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, may be agreed in writing by Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result --------- been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoaccordance with Section 7.01, Merger Subsidiary shall, and Parent shall or shall cause Sub Merger Subsidiary to, commence within the meaning of Rule 14d-2 under the Exchange Act (as hereinafter defined) the Offer as promptly as practicable following after the date hereof, but in no event later than five business days after the initial public announcement of Parent's intention to commence the Offer, commence (within . The Offer shall have a scheduled Expiration date 20 business days following commencement of the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended Offer (the "Exchange ActInitial Expiration Date"). Notwithstanding any contrary provision of this Agreement, Merger Subsidiary (i) if so requested by the Company at the direction of the Special Committee, will extend the Offer for up to ten business days following in the event upon the Initial Expiration Date, Merger Subsidiary shall not have accepted for payment Shares pursuant to the Offer as a tender offer result of one or more of the conditions set forth in Annex A hereto not having been satisfied or waived by Merger Subsidiary and (as amended ii) at its discretion may determine from time to time in accordance with this Agreement, to extend the "Offer") to purchase Offer for no more than an aggregate of ten business days following the later of the Initial Expiration Date and the first expiration date thereafter on which all of the issued and outstanding shares of common stockconditions set forth in Annex A shall have been satisfied or waived, par value $0.005 per shareif applicable, provided, however, that in the event that Parent extends the Offer pursuant to this clause (ii) all of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net conditions 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 deemed to (i) the condition that there shall be validly tendered in accordance with the terms have been irrevocably satisfied for all purposes of the Offer and shall not be asserted by Parent as a basis for not consumating the Offer and (iii) may, from time to time at its discretion, extend the Offer in increments of up to ten business days each, if one or more of the conditions set forth in Annex A shall not have been satisfied or waived. Parent shall not accept for payment any Shares tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and not withdrawn a such number of Shares which, together with any constitutes at least a majority of the Shares then not beneficially owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding Merger Subsidiary on a fully-fully diluted basis (the "Minimum Condition"). In addition to the Minimum Condition, (ii) the receipt obligation of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient Parent to consummate the transactions contemplated hereby accept for payment and pay for Shares tendered pursuant to the terms Offer shall be subject only to the satisfaction of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I A hereto. Offeror Parent expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Per Share payable in Amount. Without the Offer, to extend the Offer and to make any other changes in the terms and conditions prior consent of the Offer; providedSpecial Committee, however, that unless -------- ------- previously approved by the Company in writing, Offeror Parent will not (i) decrease the price per Per Share payable in the Offer, Amount (ii) decrease change the maximum number of Shares to be purchased in the Offer, Offer (iii) impose conditions to change the form of the consideration payable in the Offer in addition to those set forth in Annex I hereto, (iv) change amend or add to the conditions to the Offer set forth in any material respect adverse to the Company, Annex A hereto; or (v) except as provided make any other change in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner which is adverse to the holders of the Shares. Notwithstanding Under no circumstances shall Parent waive the foregoingMinimum Condition. The Per Share Amount shall, Offeror maysubject to any applicable withholding of taxes, without be net to the consent seller in cash, upon the terms and subject to the conditions of the CompanyOffer. Following the satisfaction or waiver of the conditions to the Offer, (i) extend Parent shall cause Merger Subsidiary to accept for payment and pay for, in accordance with the terms of the Offer, all Shares validly tendered pursuant to the Offer beyond any scheduled expiration and not withdrawn, as soon as it is permitted to do so pursuant to applicable law.
(b) As soon as reasonably practicable on the date (the initial scheduled expiration date being 20 business days following of commencement of 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 (including, Parent shall file with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.)
(bi) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 14D-1, including the exhibits thereto (together with all amendments and supplements thereto, the "Schedule 14D-1"), including the exhibits thereto with respect to the Offer which will and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, including the exhibits thereto (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and the other transactions contemplated hereby (the "Transactions"). The Schedule 14D-1 and the Schedule 13E-3 shall contain the or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and form forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror Merger Subsidiary and the Company each agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it which shall have become false materially incorrect or misleading in any material respect. Offeror will misleading, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable lawsLaw (as defined hereinafter). The Company Company, the Special Committee and its their respective counsel shall be given an the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company . Parent and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Merger Subsidiary shall provide the Company Company, the Special Committee and its their respective counsel with a copy of any written comments Offeror and its counsel or telephonic notification of any oral comments Parent or Merger Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub its counsel shall cause provide the Company and the Special Committee and their respective counsel with a reasonable opportunity to participate in all tendered Shares to be returned communications with the SEC and its staff, including any meetings and telephone conferences, relating to the registered holders of the Shares represented by the certificate Transactions or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Rexel Sa), Merger Agreement (Pinault Printemps Redoute Sa Et Al)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Article VIII, as promptly as practicable following (and in any event on or before January 8, 2014) after the date hereof, but in no event later than five business days after the initial public announcement of the OfferAcquisition Sub shall (and Parent shall cause Acquisition Sub to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of 1934the Offer, as amended and the obligation of Acquisition Sub to accept for payment and pay for any shares of Common Stock tendered pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or Acquisition Sub represents a majority of the shares of Common Stock then outstanding (determined on a fully diluted basis) (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the "Exchange Act"“Termination Condition”); and (iii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a tender fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the extent so exercisable, convertible or exchangeable prior to consummation of the Merger or exercisable, convertible or exchangeable as a result of the consummation of the Offer or the Merger.
(b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other Offer Conditions, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer as promptly as possible on or after the applicable Expiration Date. The Offer Price payable in respect of each share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest.
(c) The Offer shall be made by means of an offer to purchase (as amended from time the “Offer to time Purchase”) that describes the terms and conditions of the Offer 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 including the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I heretoConditions. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- Unless previously approved by the Company in writing, Offeror will not Parent and Acquisition Sub shall not: (i) decrease the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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, (iii) change the number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock.
(d) Unless extended in accordance with the Shares. Notwithstanding terms of this Agreement, the foregoing, Offeror may, without Offer shall expire at 11:59 p.m. (New York City time) on the consent date that is twenty (20) Business Days following the commencement of the CompanyOffer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If as of any then scheduled Expiration Date, (i) any Offer Condition has not been satisfied or, to the extent waivable by the Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the satisfaction of the Offer Conditions; and (ii) if (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing and (B) Parent and Acquisition Sub acknowledge in writing that the Company may terminate the Agreement pursuant to Section 8.1(i)(ii) and receive the Parent Termination Fee, Acquisition Sub may extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the funding of the Debt Financing; provided, however, that, subject to Section 8.1(b), Acquisition Sub shall not be required to extend the Offer beyond any scheduled expiration date June 16, 2014 (the initial scheduled expiration date being 20 business days following commencement of the Offer“Outside Date”) 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waivedextend the Offer beyond the Outside Date without the Company’s consent. In addition, until such time as such conditions are satisfied or waived and (ii) Acquisition Sub shall extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the Securities and Exchange Commission (the "SEC") SEC or its staff or the staff thereof applicable NYSE; provided, however, that, subject to the Offer. The limitations regarding the terms and conditions of the OfferSection 8.1(b), as set forth in the second preceding and the immediately preceding sentences, Acquisition Sub shall not be applicable in required to extend the event Offer beyond the Outside Date and shall not extend the Offer beyond the Outside Date without the Company’s consent.
(f) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 8.1(dArticle VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) of this Agreement. Subject to the terms and conditions of promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this AgreementAgreement is terminated prior to the Acceptance Time, Offeror Acquisition Sub shall accept for payment promptly return, and pay forshall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all Shares validly tendered and shares of Common Stock that have not withdrawn pursuant then been purchased in the Offer to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
(bg) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Acquisition Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all amendments, supplements or amendments thereto and including exhibits thereto, the "Offer Documents"“Schedule TO”). The Schedule TO shall include as exhibits (without limitation), the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). Parent and Acquisition Sub agree to cause the Offer Documents will comply in to be disseminated to holders of shares of Common Stock, as and to the extent required by all material respects with applicable federal securities laws Laws, including the Exchange Act. Parent and any other applicable laws. ParentAcquisition Sub, Offeror on the one hand, and the Company each Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will take all steps necessary respect or as otherwise required by applicable Law, and Parent and Acquisition Sub agree to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and to be disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by all applicable federal securities laws and any other applicable lawsLaws, including the Exchange Act. The Company and its counsel shall be given an a reasonable opportunity to review the Schedule TO and comment on the Offer Documents and any amendments thereto prior to the filing thereof before they are filed with the SEC; provided that Offeror will attempt , and Parent and Acquisition Sub shall give due consideration to give the reasonable additions, deletions or changes suggested thereto by the Company and its counsel as much time prior to filing to so review counsel. In addition, Parent and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will Acquisition Sub shall provide the Company and its counsel promptly with copies of any comments Offeror written comments, and its shall inform them of any oral comments, that Parent, Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the receipt thereof. In the event that the Schedule TO and Offer is terminated or withdrawn by Offeror, Documents and Parent and Acquisition Sub shall cause all tendered Shares to be returned give due consideration to the registered holders reasonable additions, deletions or changes suggested thereto by the Company and its counsel and to participate in any substantive telephonic communications with the staff of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)SEC related thereto.
Appears in 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoaccordance with Article V, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with its rules and regulations, the "“Exchange Act"”)), the Offer, as promptly as reasonably practicable (and, so long as the Company is in compliance with its obligations to provide information contained in the second sentence of Section 1.1(d), within ten (10) a tender offer (as amended from time to time in accordance with Business Days) after the date of this Agreement; provided, however, if the "Offer") Company is not ready to purchase all file the Schedule 14D-9 on the same date as the commencement of the Offer, then such deadline shall automatically be extended until such date as the Company is ready to file the Schedule 14D-9. Purchaser shall give the Company three (3) Business Days notice of the expected commencement date.
(b) The obligation of Purchaser 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, and not validly withdrawn prior to any then-scheduled Expiration Time, that number of Shares which represents at least forty percent (40%) of the total number of Shares authorized and issued on the date hereof (the “Minimum Condition”); and outstanding shares of common stock(ii) the satisfaction, par value $0.005 per shareor waiver by Parent or Purchaser, in their sole discretion, of the Company conditions or requirements set forth in Annex A attached hereto (together with the "Shares" or "Common Stock"Minimum Condition, the “Offer Conditions”), at a price other than the Minimum Condition. The Offer Price payable in respect of each Share validly tendered and not less than $10.50 per Share, validly withdrawn pursuant to the Offer shall be paid net to the seller in cash. For purposes of this Article I, the party which makes the Offerwithout interest, 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 shall be validly tendered in accordance with on the terms of the Offer prior and subject to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the right in its sole discretion “Offer to waive any such condition (including the Minimum Condition, provided Purchase”) that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in describes the terms and conditions of the OfferOffer as set forth in this Agreement, including the Offer Conditions. Parent and Purchaser expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition or to increase the Offer Price; provided, however, that that, unless -------- ------- previously approved otherwise provided by this Agreement, without the Company in writingprior written consent of the Company, Offeror will not Purchaser shall not
(i) decrease the price per Share Offer Price or change the form of consideration payable in the Offer, (ii) decrease the maximum number of Shares subject to be purchased in the Offer, (iii) impose conditions add to the Offer in addition to those conditions set forth in on Annex I heretoA, (iv) change the conditions to the amend or modify any Offer Condition in any material respect a manner that is adverse to the CompanyCompany Shareholders, (v) except as provided in waive or amend the next sentence, extend the OfferMinimum Condition, (vi) except as otherwise provided in this Section 1.1, extend or otherwise change the form expiration date of consideration payable in the Offer or (vii) amend any other term otherwise amend, modify or supplement the terms of the Offer in a manner that is adverse to the holders of the Shares. Notwithstanding Company Shareholders; provided that, notwithstanding the foregoing, Offeror may, without Purchaser expressly reserves the consent of the Company, right (iexercisable in its sole discretion) extend to increase the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not Price or to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, waive any of the conditions to Offeror's obligation to accept for paymentOffer Conditions, and pay for, Shares other than the Minimum Condition.
(including, d) Purchaser shall file with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) on the date that the Offer is commenced, which will contain Schedule TO shall include, as exhibits, the offer Offer to purchase Purchase, form of transmittal letter and form of the related letter notice of transmittal and summary advertisement guaranteed delivery (such Schedule TO, including all such exhibits, together with any supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”) and, subject to the Company’s compliance with Section 1.2(b), cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the Exchange Act. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required by the Exchange Act to be set forth in the Offer Documents or that is otherwise reasonably requested by Parent or Purchaser for inclusion in the Offer Documents or in connection with the obligations relating to the Offer Documents contained in this Section 1.1(d). The Parent and Purchaser shall take all steps necessary to cause the Offer Documents will comply to be filed with the SEC and disseminated to the Company Shareholders, in all material respects with each case as and to the extent required by applicable federal securities laws Law. Parent and any other applicable laws. ParentPurchaser, Offeror on the one hand, agree to amend the Offer Documents and the Company each agree Company, on the other hand, agrees to promptly correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Offeror will Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Documents, as so corrected amended (if applicable), to be filed with the SEC and to be disseminated to holders of Sharesthe Company Shareholders, in each case as and to the extent required by applicable federal securities laws and Law. Prior to the filing of the Offer Documents (including any other applicable laws. The amendments or supplements thereto) with the SEC or dissemination thereof to the Company Shareholders, the Company and its counsel shall be given an a reasonable opportunity to review and comment on such Offer Documents, and Parent and Purchaser shall give reasonable consideration to any such comments. Parent and Purchaser shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents Documents, and any amendments thereto prior to shall promptly provide the filing thereof Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC; provided that Offeror will attempt to , on the other hand, and shall give the Company and its counsel as much time prior a reasonable opportunity to filing participate in the response of Parent and Purchaser to so review those comments and comment as Offeror believes is reasonably practicable under to provide comments on any response, and Parent and Purchaser shall give reasonable consideration to any such comments. Prior to responding to any comments of the circumstances. Offeror will SEC with respect to the Offer Documents, Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on such response, and Parent and Purchaser shall give reasonable consideration to any such comments.
(e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, on the date that is twenty (20) Business Days (as defined in Rule 14d-1 under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”). Notwithstanding anything in this Agreement to the contrary, but subject to the parties’ respective rights to terminate this Agreement under Article V, if applicable, (i) Purchaser may, in its sole discretion, without the consent of the Company, extend the Offer on one or more occasions if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, as permitted by this Agreement, waived, until such time as such condition or conditions are satisfied or so waived, (ii) Purchaser shall extend the Offer for any period required by applicable Law, any interpretation or position of the SEC, the staff thereof or NASDAQ applicable to the Offer, (iii) in the event that any of the Offer Conditions (other than the Minimum Condition) shall have not been satisfied or, as permitted by this Agreement, waived as of any then-scheduled Expiration Time, then Purchaser, at the request of the Company, shall extend the Offer for a period reasonably requested by the Company and (iv) in the event that the Minimum Condition shall not have been satisfied as of the then-scheduled Expiration Time and all of the other conditions to the Offer set forth in Annex A shall have been satisfied as of such Expiration Time, then, at the request of the Company, Parent shall cause Purchaser to extend the Offer for one extension period of up to twenty (20) Business Days, the length of such period to be determined by the Company in its sole discretion; provided, however, that in no event shall Purchaser be required or permitted to extend the Offer beyond December 31, 2011 (the “Outside Date”).
(f) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer and accept for payment and pay for (subject to any withholding of Taxes pursuant to Section 1.1(h)) all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Time (as it may be extended and re-extended in accordance with any comments Offeror this Section 1.1). Acceptance for payment of Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Unless this Agreement and the Offer are terminated in accordance with Article V prior to the Offer Closing, Parent shall cause Purchaser to extend the Offer for a “subsequent offering period” of not less than twenty (20) Business Days, and Purchaser may, at its counsel may receive from sole discretion, extend the SEC Offer for additional “subsequent offering periods” (and one or its staff more extensions thereof), all in accordance with Rule 14d-11 under the Exchange Act. The Offer Documents shall disclose the initial “subsequent offering period” and may, in Purchaser’s sole discretion, provide for such a reservation of right with respect to any additional “subsequent offering periods.” Notwithstanding the foregoing and subject to applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Law. Any such delay in payment shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. Nothing contained in this Section 1.1 shall affect any termination rights in Article V, as to the Agreement, or in Annex A, as to the Offer.
(g) Purchaser shall not terminate the Offer Documents promptly after prior to any scheduled Expiration Time without the receipt thereof. In prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article V. If the Offer is terminated or withdrawn by OfferorPurchaser, Parent or this Agreement is terminated pursuant to Article V, prior to the acceptance for payment of the Shares tendered in the Offer, Purchaser shall promptly return, and Sub shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to be returned to the registered holders thereof. This Agreement may not be terminated by Parent or Purchaser for any reason following acceptance for payment of the Shares represented by tendered in the certificate Offer but prior to payment for such Shares.
(h) Parent, Purchaser and any depository acting on behalf of Parent or certificates surrendered Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Exchange Agent Offer such amounts otherwise payable to any Person pursuant to this Agreement as may be required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (as defined in Section 3.3 the “Code”), and applicable Treasury Regulations issued pursuant thereto, or under any provision of any state, local or foreign Tax Law, including applicable Spanish Tax Law. To the extent amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement)Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Any amounts so withheld shall be paid over promptly to the appropriate taxing authority and Purchaser shall provide prompt written notice to the Persons from whom such amounts are withheld, specifying the amounts so withheld and the taxing authorities to which the withheld amounts have been paid.
Appears in 2 contracts
Sources: Transaction Agreement (Schneider Electric Sa), Transaction Agreement (Telvent Git S A)
The Offer. (a) Provided In accordance with the provisions of this Agreement and provided that nothing shall have occurred that which would result in a failure to satisfy of any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoA, Parent shall or shall cause Sub toattached hereto and made a part hereof, as promptly as practicable practicable, and in no event later than the fifth (5th) business day following the date hereof, but in no event later than five business days after the initial public announcement of Parent shall cause the OfferPurchaser to, and the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) , a tender offer (as it may be amended from time to time in accordance with this Agreementas permitted hereunder, the "Offer") to purchase for all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or ") of the Common Stock"), Stock (defined hereafter) at a price of not less than Twenty Three Dollars and Forty Cents ($10.50 23.40) per Share, share net to the seller in cash. For purposes of this Article I, the party which makes without interest thereon (such price or such higher price per share as may be paid in the Offer, whether Parent or Subbeing referred to herein as the "Share Price"), which Offer, and the obligation of the Purchaser to accept payment and pay for Shares tendered pursuant to the Offer, 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 shall be validly tendered in accordance with the terms of the Offer prior this Agreement, subject to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I A hereto. Offeror expressly reserves The Purchaser shall, subject only to the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such satisfaction or waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in on Annex I A hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition (as defined in Annex A hereto) and the other conditions set forth in Annex A hereto. Notwithstanding the foregoing, the Purchaser expressly reserves the right to increase the price per Share payable in the Offer and make any other changes to the terms or conditions of the Offer (or waive in whole or in part, at the sole discretion of the Purchaser any of such conditions), provided, however, that Offeror becomes obligated the Purchaser will not, without the prior written consent of the Company (such consent to accept for paymentbe authorized by the Board of Directors of the Company), (i) waive the Minimum Condition, (ii) subject to clause (z) of the proviso in the immediately following sentence, extend the Offer if all of the Offer conditions are satisfied or waived, (iii) decrease the Share Price, change the form of consideration payable in the Offer or decrease the number of Shares sought, (iv) impose additional conditions to the Offer, (v) waive the condition described in clause (x) of Annex A hereto or (vi) amend the conditions of the Offer or any other term of the Offer in any manner adverse to the holders of Shares (other than insignificant changes or amendments or other than to waive any condition). The initial expiration date of the Offer shall be 20 business days following commencement of the Offer (such date and time, as may be extended in accordance with the terms hereof, is referred to as the "Expiration Date"); provided, however, and pay fornotwithstanding anything in the foregoing to the contrary, it is understood and agreed that the Purchaser may, from time to time, in its sole discretion extend the Expiration Date, but not beyond September 24, 1997, without the consent of the Company (x) if any of the conditions to the Offer have not been satisfied, for the minimum period of time necessary to satisfy such condition; (y) for any period required by any order, decree or ruling of, or any rule, regulation, interpretation or position of, any Governmental Entity (as hereafter defined) applicable to the Offer; or (z) for a period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence solely for the purpose of obtaining valid tenders (which are not withdrawn) of 90% of the Shares. A record holder who validly tenders, and does not withdraw, pursuant to the Offer as soon as practicable after expiration at least 500,000 shares of Common Stock which such holder beneficially owns, may receive, upon acceptance of such shares by the Purchaser pursuant to the Offer, subject payment therefor by wire transfer of immediately available funds to compliance with Rule 14e-1(c) under an account in the Exchange Act. Subject United States designated in writing by such holder at the time such shares are tendered pursuant to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of Offer is commenced, the Offer, Offeror Parent and the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply as to form 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 other 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 the Parent or the Purchaser with respect to information furnished by the Company for inclusion or incorporation by reference in the Offer Documents. The information supplied in writing by the Company for inclusion or incorporation by reference in the Offer Documents and by the Parent or the Purchaser for inclusion or incorporation by reference in the Schedule 14D-9 (as hereinafter defined) will 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. Each of the Parent and the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Offeror Each of the Parent and the Company each agree to Purchaser, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect. Offeror respect and the Purchaser will 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 the Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof Schedule 14D-1 before it is filed with the SEC; provided that Offeror will attempt to give . In addition, the Company Parent and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror Purchaser will provide the Company and its counsel in writing with any comments Offeror and its comments, whether written or oral, the Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Ibp Inc), Merger Agreement (Foodbrands America Inc)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 8.1, as promptly as practicable following the date hereof, (but in no any event not later than five ten business days after the initial public announcement of Purchaser's intention to commence the Offer), Parent will cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender offer (as amended from time to time in accordance with this Agreement), the "Offer") Offer whereby Purchaser will offer to purchase for cash all of the issued and outstanding shares of common stock, par value $0.005 per share, of Shares at the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per SharePer Share Amount, net to the seller in cashcash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than the Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Article IAgreement, "PERSON" shall mean an individual, corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time (as defined in Section 2.2 hereof), the party which makes outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per- share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Parent to cause Purchaser to commence the Offer, whether Parent or Sub, shall be referred to as consummate the "Offeror." The obligation of Offeror Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) 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 whichin accordance therewith will be subject to, together with any Shares then owned by Parent or Suband only to, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 those conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ANNEX A hereto (the "SECOFFER CONDITIONS") or the staff thereof applicable to the Offer. The limitations regarding ), the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerwhich are hereby incorporated herein by reference.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco 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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereofpracticable, but in no event later than five business days after the initial public announcement of the Offerexecution of this Agreement, the Purchaser shall, and the Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock (the "Shares"), together with the associated rights, if any, to purchase Series A participating Cumulative Preferred Stock, par value $0.005 .01 per shareshare ("Series A Shares"; and together with the Shares, of the Company (the "Shares" or Securities"Common Stock"), ) at a price of not less than $10.50 11.625 per Share, 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. For purposes The obligations of this Article I, the party which makes Purchaser and the Offer, whether Parent or Sub, shall be referred to as consummate the "Offeror." The obligation of Offeror Offer and to accept for payment and to pay for any Shares purchase the Securities tendered in the Offer shall be subject only to (i) the conditions set forth in Annex A hereto. The Purchaser shall not without the Company's prior written consent reduce the price per Security or the number of Securities sought to be purchased or modify the form of consideration to be received by holders of the Securities in the Offer, increase the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not clause (i) decrease of the price per Share payable in the Offerfirst sentence of Annex A hereto, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose additional conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner materially adverse to the holders of the SharesSecurities. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect Subject only to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreementset forth in Annex A, Offeror shall accept for payment the Purchaser shall, and the Parent shall cause the Purchaser to, pay for, for all Shares of the Securities validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerlegally permissible.
(b) As soon as practicable on the date of the commencement of Offer is commenced, the Offer, Offeror shall Parent and the Purchaser will file with the SEC Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any all supplements or amendments thereto thereto, and including exhibits theretoall exhibits, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror Parent and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it Purchaser shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior a reasonable opportunity to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after prior to the receipt thereof. In the event that filing of the Offer is terminated Documents with the Commission or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders dissemination of the Shares represented by the certificate or certificates surrendered Offer Documents to the Exchange Agent (as defined in Section 3.3 stockholders of this Agreement).the
Appears in 2 contracts
Sources: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through accordance with Article VII, then (i) not later than the first Business Day after execution of Annex I heretothis Agreement, Parent and the Company shall or shall cause issue separate public announcements regarding the execution of this Agreement and (ii) Merger Sub toshall, as promptly soon as practicable following the date hereofpracticable, but in no event later than five business days Business Days from and after the initial public date of such announcement, including the date of announcement of as the Offerfirst Business Day in accordance with Rule 14d-2 under the Exchange Act, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, Company Common Stock at the Price Per Share. The initial expiration date of the Company (Offer shall be the "Shares" or "Common Stock")twentieth Business Day from and after the date the Offer is commenced, at a price including the date of not less than $10.50 per Share, net commencement as the first Business Day in accordance with Rule 14d-2 under the Exchange Act. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the seller Company and containing terms and conditions set forth in cashthis Agreement. 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 Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock tendered in pursuant to the Offer shall be subject only to (i) there being at least that number of shares of Company Common Stock representing a majority of the condition that there shall be total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "MINIMUM SHARES") validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum ConditionMINIMUM CONDITION"), ) and (ii) the receipt satisfaction 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 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 set forth in Annex I A hereto. Offeror expressly reserves the right , any of which conditions may be waived by Merger Sub in its sole discretion to discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease without the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions prior written consent of the Offer; provided, however, Company. The Company agrees that unless -------- ------- previously approved no shares of Company Common Stock held by the Company in writingor any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, Offeror neither Parent nor Merger Sub will not (i) decrease the price per Price Per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions shares of Company Common Stock sought pursuant to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in ANNEX A hereto or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (viiv) amend otherwise amend, add or waive any other term or condition of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoingshares of Company Common Stock; PROVIDED, Offeror mayHOWEVER, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, that if at on any scheduled expiration date of the Offer, Offer any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall Offer have not be been satisfied or waived, until such Merger Sub may, and at the request of the Company shall, from time as such to time, extend the expiration date of the Offer for up to 5 additional Business Days (but in no event shall Merger
(1) the conditions are to the Offer shall have been satisfied or waived and (ii2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the total issued and outstanding shares of Company Common Stock on a fully diluted basis; PROVIDED, HOWEVER, that in no event shall the extension permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Notwithstanding anything to the contrary in this Agreement, Parent may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission during (the "SEC") or the staff thereof applicable but only to the Offer. The limitations regarding end of) the terms and conditions of period in which the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement Company is terminated attempting to cure a breach pursuant to Section 8.1(d) of this Agreement7.1(h). Subject Parent and Merger Sub will, subject to the terms and conditions of the Offer and this Agreement, Offeror use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in ANNEX A hereto, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment , and pay for, in accordance with the terms of the Offer, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after permitted under applicable law, recognizing that the parties wish to close as expeditiously as possible following expiration or termination of the Offer, subject to compliance with Rule 14e-1(c) waiting period under the Exchange HSR Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to takeshall provide, or cause to be takenprovided, all actions and to doMerger Sub, or cause on a timely basis, the funds necessary to be done, all things necessary, proper or advisable under applicable laws and regulations purchase any shares of Company Common Stock that Merger Sub becomes obligated to consummate purchase pursuant to the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Rental Service Corp), Merger Agreement (Rental Service Corp)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure Subject to satisfy any the terms and conditions of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tothis Agreement, as promptly as practicable following the date hereof, (but in no event later than five business days after the initial public announcement of the Offerexecution hereof), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase for cash 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 13.50 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"). 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 shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares whichOffer, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis as of the expiration of the Offer (the "Minimum Condition"), (ii) the 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 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) to the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition A hereto (including the Minimum Condition, provided herein referred to as the "Offer Conditions"). The Purchaser shall, subject to the terms of this Agreement, including the prior satisfaction or waiver (except that no such waiver of the Minimum Condition may not be waived without the consent of the Company) of the Offer Conditions, accept for payment and pay for any Shares tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof. The Offer shall decrease be made by means of an offer to purchase (the Minimum Condition "Offer to less than sixty-six and two-thirds (66 2/3%Purchase") percent)containing the Offer terms set forth in this Agreement. The Purchaser expressly reserves the right, in its sole discretion, to increase the price per Share payable in the Offer, to extend the Offer waive any such condition and to make any other changes in the terms and conditions of the Offer; providedOffer not inconsistent with the provisions of this Agreement, howeverprovided that, that unless -------- ------- previously approved by the Company in writing, Offeror will Purchaser shall not (i) amend or waive the Minimum Condition and shall not decrease the price per Share payable in the Offer, (ii) Offer Price or decrease the maximum number of Shares to be purchased in the Offersought, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to or amend any other condition of the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesShares without the prior written consent of the Company (such consent to be authorized by the Company Board or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe Purchaser shall, without and Parent agrees to cause the consent of the CompanyPurchaser to, (i) extend the Offer beyond at any scheduled expiration date (the initial scheduled expiration date being 20 time up to May 10, 1999 for one or more periods of not more than 10 business days following commencement of the Offer) for a period not to extend beyond July 31days, 1998or, if at any scheduled expiration date of the Offerlonger, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding , if at the terms and conditions initial expiration date of the Offer, as set forth in or any extension thereof, any condition to the second preceding Offer (other than the Minimum Condition) is not satisfied or waived. In addition, the Offer Price may be increased and the immediately preceding sentences, shall not Offer may be applicable extended to the extent required by law in connection with such increase in each case without the event this Agreement is terminated pursuant to Section 8.1(d) consent of this Agreementthe Company. Subject to the terms and conditions foregoing, it is agreed that the Offer Conditions are for the benefit of the Offer Purchaser and this Agreementmay be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser or Parent not inconsistent with the terms hereof) or, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant except with respect to the Offer that Offeror becomes obligated Minimum Condition, may be waived by the Purchaser, in whole or in part at any time and from time to accept for paymenttime, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use in its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offersole discretion.
(b) As soon as reasonably practicable on the date of the commencement of Offer is commenced, Parent and the Offer, Offeror Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will 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 other 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 the Purchaser further agrees to 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 federal securities laws. Parent, Offeror Each of Parent and the Company each agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect. Offeror will respect and the Purchaser further agrees to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof initial Schedule 14D-1 before it is filed with the SEC; provided that Offeror will attempt . In addition, Parent and the Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel in writing with any comments Offeror and its or other communications that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated of such comments or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)other communications.
Appears in 2 contracts
Sources: Merger Agreement (Aydin Corp), Merger Agreement (Aydin Corp)
The Offer. (a) Provided Provided, that nothing this Agreement shall not have terminated in accordance with its terms and provided that none of the events set forth in clause (iii)(a) of Annex A shall have occurred that would result in a failure and subject to satisfy any there being no Order enjoining, restraining or otherwise prohibiting the commencement of the conditions set forth in paragraphs Offer and no Law having been enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Company or any subsidiary or affiliate thereof having such effect, Purchaser shall (a) through (i) of Annex I hereto, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer the Offer as promptly as reasonably practicable, but no later than ten (as amended from time to time in accordance 10) business days (commencing with the first business day after the date of 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 after the date hereof. Following such launch, each of not less than $10.50 per Share, net Parent and Purchaser shall use its reasonable best efforts to the seller in cash. For purposes of this Article I, the party which makes consummate the Offer, whether Parent or Sub, shall be referred subject to as the "Offerorterms and conditions hereof."
(b) The obligation of Offeror Purchaser to accept for payment payment, purchase and to pay for any Company Shares tendered in pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction or waiver pursuant to the terms hereof of (ix) the condition (the “Minimum Condition”) that there shall be at least that number of Company Shares validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and (other than Company Shares tendered by guaranteed delivery where actual delivery has not withdrawn a number of occurred), when added to any Company Shares which, together with any Shares then already owned by Parent or Subany of its controlled subsidiaries, represents at least ninety (90%) percent if any, equal a majority of the sum of the then outstanding Company Shares outstanding on plus (without duplication) a fully-diluted basis number equal to the number of Company Shares issuable upon the vesting (including vesting solely as a result of the "Minimum Condition"consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into Common Shares, or other rights to acquire or be issued Common Shares (ii) including then outstanding Company Stock Options and Company RSUs, assuming the receipt of cash proceeds of effectiveness thereof occurred on the Financing (as defined Expiration Date), in Section 4.2(d) of this Agreement) in each case, with an amount sufficient to consummate exercise or conversion price below the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or 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") Per Share Amount and (iiiy) the other conditions set forth in Annex I heretoA hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Offeror Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion discretion, to amend or waive any such condition (including the Minimum Condition, provided that no such waiver of other than the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percentwhich may not be amended or waived), to increase the price per Company Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in writingSection 2.1(h)), Offeror will not (i) decrease changes the price per Share form of consideration payable in the Offer, (ii) decrease adds to the maximum conditions to the Offer, decreases the number of Company Shares sought to be purchased in the Offer, (iii) impose conditions to extends the Offer other than in addition a manner pursuant to those set forth and in Annex I hereto, (iv) change accordance with the conditions terms of this Section 2.1 or modifies or amends any condition to the Offer in 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 manner that broadens such conditions or (vii) amend any other term of the Offer in a manner is adverse to the holders of Company Shares.
(c) Subject to the Shares. terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1 or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(d) Notwithstanding the foregoingforegoing or anything to the contrary set forth in this Agreement, Offeror may, without the consent of the Companyunless this Agreement shall have been terminated in accordance with Section 9.1, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or 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") SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer. The limitations regarding Offer and (ii) if, on the terms initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and conditions has not been waived, then Purchaser shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), (A) if any of the Offer, as events set forth in clause (iii)(a) of Annex A shall have occurred on or before the second preceding initial Expiration Date or the end of any Additional Offer Period, in no event shall Purchaser be required to extend the Offer beyond the initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the immediately preceding sentencesinitial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 20 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be applicable deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 9.1.
(e) In the event that this Agreement is terminated pursuant to Section 8.1(d9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of this Agreementsuch termination), irrevocably and unconditionally terminate the Offer.
(f) The Per Share Amount shall, subject to applicable withholding of Taxes, be net to the applicable seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Offeror Purchaser or Parent on Purchaser’s behalf shall accept for payment , and pay for, for all Company Shares validly tendered and not withdrawn pursuant to promptly following the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer; provided, subject however, that without the prior written consent of the Company, Purchaser shall not accept for payment or pay for any Company Shares if, as a result, Purchaser would acquire less than the number of Company Shares necessary to compliance with Rule 14e-1(c) under satisfy the Exchange ActMinimum Condition. Subject The time at which Purchaser first accepts for payment the Company Shares tendered in the Offer is referred to as the “Acceptance Time”. If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the terms and conditions satisfaction of the Offer, Parent and Sub will each use its reasonable best efforts to take, Purchaser that such Taxes either have been paid or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerare not applicable.
(bg) As soon promptly as reasonably practicable on the date of the commencement of the Offer, Offeror Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer which will Offer. The Schedule TO shall contain the or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and form of the related letter of transmittal and summary advertisement any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, the Offer to Purchase and such other documents, together with any all exhibits, supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "“Offer Documents"”). The Purchaser shall use its reasonable best efforts to cause the Offer Documents will to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws and any other applicable laws. Parent, Offeror Purchaser and the Company each agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will take all steps necessary , and Parent and Purchaser further agree to use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Company Shares, in each case in all material respects as and to the extent required by applicable federal securities laws and any other applicable laws. The Company shall promptly furnish to Purchaser or Parent all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(g). Parent and Purchaser shall give the Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof Schedule TO before it is filed with the SEC; provided that Offeror will attempt , and Parent and Purchaser shall give reasonable and good faith consideration to give the any comments made by Company and its counsel as much time prior counsel. In addition, Parent and Purchaser agree to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will (i) provide the Company and its counsel in writing with any written comments Offeror and its Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In of such comments, (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(h) If, between the date of this Agreement and the Acceptance Time, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall be adjusted to the extent appropriate.
(i) Notwithstanding anything to the contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but (i) there exists an uncured Financing Failure and (ii) such Financing Failure impedes the ability of Parent or Purchaser to accept Company Shares for payment in the Offer, then Purchaser shall be permitted to extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) until the Outside Date in order to permit such Financing Failure to be cured; provided, however, that notwithstanding any other provision of this Agreement, in the event that Purchaser elects to extend the Offer is terminated or withdrawn by Offerorpursuant to and in accordance with this Section 2.1(i), then each of Parent and Sub Purchaser shall cause be deemed to have irrevocably waived all of the Tender Offer Conditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in full force and effect) and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as it relates to the Tender Offer Condition contemplated by clause (iii)(d) of Annex A, but not as it relates to the Tender Offer Condition contemplated by clause (iii)(e) of Annex A), or 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of the Offer pursuant to this Section 2.1(i), the Company shall not exercise any remedies against Parent or Purchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for) all Company Shares validly tendered in the Offer and not properly withdrawn at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 breach of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Vitesse Semiconductor Corp), Merger Agreement (Microsemi Corp)
The Offer. (a) Each of the Company and the Parent shall publicly announce the execution of this Agreement promptly following its execution, and shall cooperate with the timing of such announcements consistent with Company's obligations as a reporting company under the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇").
(b) Provided that nothing shall have occurred that would result has resulted in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoto this Agreement, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event not later than five business days after the initial public announcement execution of the Offerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 l4d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an 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"), Shares at a price of not less than $10.50 33.00 per Share, net to the seller selling stockholder in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror.Offer," which term shall include any amendments to such Offer not prohibited by this Agreement). The obligation of Offeror to accept for payment and to pay for any Shares tendered in consummate the Offer shall be subject only to (i) 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 whichthat, together with any the Shares then beneficially owned by Parent or SubParent, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the 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 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) to the other conditions set forth in Annex I heretoto this Agreement. Offeror expressly reserves the right in its sole discretion The Offer shall be made by means of an offer to waive any such condition (including the Minimum Condition, provided that no such waiver of purchase containing the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and further conditions of the Offer; provided, however, that unless -------- ------- previously approved by the 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to I. Merger Sub hereby covenants and agrees that it shall hold the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being open for not less than 20 business days following days. Simultaneously with the commencement of 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 (including, Merger Sub shall file with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 14D-1, as amended and supplemented, with respect to the Offer which will contain (the offer to purchase "Schedule 14D-1") and form of the related letter Letter of transmittal and summary advertisement Transmittal, as amended or supplemented, (together collectively with any supplements or amendments thereto and including exhibits thereto, the Schedule 14D-1 the "Offer Documents")) provided that prior to the filing of the Offer Documents, Merger Sub shall have afforded the Company's counsel with a reasonable opportunity to review and make comments with respect to the Offer Documents. The Parent agrees to provide the Company and its counsel with any comments that the Parent or its counsel may receive from the SEC or its staff with respect to the Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable lawspromptly after receipt thereof. Each of the Parent, Offeror Company and the Company each agree to Merger Sub shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will respect and Merger Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws laws.
(c) Parent and Merger Sub expressly reserve the right to waive any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on of the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect conditions to the Offer Documents promptly after and to modify the receipt thereofterms and conditions of the Offer from time to time, except that, without the prior written approval of the Company, the Offer shall not be amended (i) to reduce the cash price per Share to be paid pursuant thereto, (ii) to reduce the number of Shares to be purchased thereunder, (iii) to change the form of consideration to be paid in the Offer, (iv) to increase the minimum number of Shares which must be tendered to satisfy the Minimum Condition, (v) to impose additional conditions to the Offer or (vi) otherwise to amend the terms of the Offer in a manner that is materially adverse to the stockholders of the Company. In the event that the Offer is terminated conditions set forth in paragraphs (a)(ii), (a)(iii) or withdrawn by Offeror(a)(iv) of Annex I shall not have been satisfied or waived at the scheduled or any extended expiration date of the Offer, Parent and Merger Sub shall cause all tendered Shares to be returned to extend the registered holders expiration date of the Shares represented by Offer in increments of not less than five business days; provided that Parent and Merger Sub shall not be required to extend the certificate or certificates surrendered to expiration date of the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer past February 15, 2000.
Appears in 2 contracts
Sources: Merger Agreement (Air Express International Corp /De/), Tender Offer and Merger Agreement (Dp Acquisition Corp)
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) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, but in no event later than five U.S. business days after following the initial public announcement of the Offerexecution of this Agreement, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended an offer (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase (i) all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 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. 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 shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichthat, together with any the Shares then beneficially owned by Parent or SubParent, represents at least ninety (90%) percent a majority of the Common Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 ConditionMINIMUM CONDITION") and (iii) to the other conditions set forth in Annex I hereto. Offeror Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; provided, howeverprovided that no change may be made that, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will not (i) decrease waives the Minimum Condition, changes the form of consideration to be paid, decreases the price per Share payable in or the Offer, (ii) decrease the maximum number of Shares to be purchased sought in the Offer, (iii) impose Offer or imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change I. If all of the conditions to the Offer in 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 are not satisfied or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at waived on any scheduled expiration date of the Offer, any of Merger Subsidiary shall extend the conditions Offer from time to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, time until such time as such conditions are satisfied or waived and (ii) waived, provided that Merger Subsidiary shall not be required to extend the Offer for any period required by any rule, regulation, interpretation or position of beyond the Securities and Exchange Commission (the "SEC") or the staff thereof applicable date referred to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement10.01(b)(i). Subject to the terms foregoing and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Merger Subsidiary shall, and Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable laws. Parent, Offeror and the Company each agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).it to, accept for payment and pay for, as
Appears in 2 contracts
Sources: Merger Agreement (Whittaker Corp), Merger Agreement (Meggit PLC)
The Offer. (a) Provided that nothing the Company shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (acomplied with its obligations under Section 1.2(b) through (i) of Annex I hereto, Parent shall or shall cause Sub toand Section 1.2(c), as promptly as practicable following after the date hereof, but hereof (and in any event no event later than five business days after October 9, 2009), the initial public announcement of Purchaser shall (and Parent shall cause the OfferPurchaser to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase for cash all of the issued and outstanding shares of common stockShares at the Offer Price, par value $0.005 per share, of the Company subject to: (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 i) there being validly tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the expiration date of the Offer and not withdrawn a Expiration Date that number of Shares which, together with any the number of Shares (if any) then owned of record by Parent or Subthe Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least ninety (90%) percent a majority of the Shares then outstanding (determined on a fully-fully diluted basis basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the "election of directors or (if a greater majority) upon the adoption of this Agreement and approval of the Merger (collectively, the “Minimum Condition"), ”) and (ii) the receipt satisfaction, or waiver by Parent or the Purchaser, 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 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 hereto. Offeror expressly reserves I.
(b) Subject to the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall decrease (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, less any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and the Purchaser expressly reserve the right to less than sixty-six waive any of the conditions and two-thirds (66 2/3%) percent)requirements set forth in Annex I, to increase the price per Share payable in the Offer, to extend the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- otherwise contemplated by this Agreement or as previously approved by the Company in writing, Offeror will the Purchaser shall not (i) decrease the price per Share Offer Price, (ii) change the form of consideration payable in the Offer, (iiiii) decrease reduce the maximum number of Shares to be purchased in the Offer, (iiiiv) impose amend or waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of Shares or the SharesCompany or (vi) extend the Expiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If, on or prior to the Initial Expiration Date, the Minimum Condition, the HSR Condition or the Governmental Approval Condition has not been satisfied or waived by Parent or the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to), to the extent requested in writing by the Company no less than two (2) Business Days prior to the scheduled Expiration Date, extend the Offer for up to two (2) periods each of twenty (20) Business Days or less, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer beyond December 31, 2009 (the “Initial Outside Date”) if any condition to the Offer has not been satisfied on or prior to the Initial Outside Date; provided, however, that, in the event that on the Initial Outside Date, (i) all of the conditions to the Offer have been satisfied, or waived by Parent and the Purchaser, other than the HSR Condition and/or the Governmental Approval Condition, but the HSR Condition and/or the Governmental Approval Condition has not been satisfied or (ii) either Parent, the Purchaser, the Company or their counsel has received comments from the SEC or its staff with respect to the Schedule TO, the Offer Documents or the Schedule 14D-9 which remain unresolved or, if resolved, require the expiration date of the tender to be extended, the Initial Outside Date automatically shall be extended by 30 days one time (in each case, such extended date, the “Extended Outside Date”). Notwithstanding the foregoing, Offeror the Purchaser may, in its sole discretion without the consent of the Company, (i) but subject to the Company’s right to terminate this Agreement pursuant to Article 7, extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31one or more periods, 1998if, if at any then scheduled expiration date of the OfferExpiration Date, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined set forth in Section 4.2(d)) Annex I shall not be have been satisfied or waived. In addition, until such time as such conditions are satisfied or waived subject to the right of Parent to terminate this Agreement (and (iithe Offer) in accordance with Section 7.1, the Purchaser shall extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the U.S. Securities and Exchange Commission (the "“SEC"”) (or its staff) or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the OfferNasdaq Global Market (“Nasdaq”).
(f) Notwithstanding the foregoing, as set forth if necessary to obtain sufficient Shares to reach the Short Form Threshold, the Purchaser may, in the second preceding its sole discretion, provide for a “subsequent offering period” (and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(done or more extensions thereof) of this Agreement. Subject up to the terms and conditions of the Offer and this Agreementtwenty (20) Business Days, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and Sub will each use its reasonable best efforts to take, or cause to be takenpromptly pay for, all actions and Shares that are validly tendered pursuant to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferOffer during any such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(bg) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is validly terminated pursuant to Article 7. If this Agreement is validly terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is validly terminated or withdrawn by the Purchaser, or this Agreement is validly terminated prior to the acceptance for payment of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which that will contain comply with the offer applicable provisions of the federal securities Laws (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase and Purchase, a form of the related letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents will comply to be filed with the SEC and disseminated to holders of Shares, in all material respects with applicable federal securities laws each case, as and any other applicable lawsto the extent required by the Exchange Act. Parent, Offeror Parent and the Company each Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will take all steps necessary respect or as otherwise required by applicable Law, and Parent and the Purchaser agree to cause the Schedule TO and the Offer Documents Documents, as so corrected corrected, 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 federal securities laws the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any other applicable lawswritten or oral responses thereto by Parent, the Purchaser, or their counsel. The Company and its counsel shall be given an opportunity to review any such written or oral responses and comment on Parent and the Offer Documents and any amendments thereto prior Purchaser shall give due consideration to the filing thereof with the SEC; provided that Offeror will attempt to give reasonable additions, deletions or changes suggested thereto by the Company and its counsel as much time prior counsel.
(i) The Offer Price shall be adjusted appropriately to filing to so review and comment as Offeror believes is reasonably practicable under reflect the circumstances. Offeror will provide the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company and its counsel with any comments Offeror and its counsel may receive from the SEC Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or its staff other like change with respect to the Offer Documents promptly Shares occurring on or after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent date hereof and Sub shall cause all tendered Shares to be returned prior to the registered holders of Purchaser’s acceptance for payment of, and payment for, the Shares represented by the certificate or certificates surrendered pursuant to the Exchange Agent Offer.
(as defined j) Nothing in this Section 1.1 shall affect any termination rights in Section 3.3 of this Agreement)7.1.
Appears in 2 contracts
Sources: Merger Agreement (Gentek Inc), Merger Agreement (ASP GT Holding Corp.)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events or circumstances set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Parent shall or shall cause Sub Purchaser agrees to, and Parent agrees to cause Purchaser to, commence the Offer as promptly as reasonably practicable following after the date hereof, but in no event later than five business days after the initial first public announcement of the Offer, commence (within execution hereof. Parent and Purchaser agree that the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as 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 Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to the conditions that (i) the condition that there shall be number of Shares validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer, combined with the Shares already owned by Parent, Purchaser or any of their affiliates, constitute at least 60% of the then outstanding Shares at the expiration of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Stock Condition"), (ii) Purchaser has acquired or is simultaneously acquiring not less than 66 2/3% in the receipt of cash proceeds aggregate principal amount 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 such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments outstanding Notes (the "Financing Note Purchase Condition") ), and (iii) also shall be subject to the satisfaction of the other conditions set forth in Annex I hereto. Offeror A. Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by Parent and Purchaser agree that no change may be made without the consent of the Company in writing, Offeror will not (i) decrease which decreases the price per Share payable in the Offer, (ii) decrease which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, (iii) impose which eliminates the Note Purchase Condition, which reduces the Minimum Stock Condition to below 51% of the then outstanding Shares, which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change A hereto or which extends the conditions to the Offer in 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 (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the OfferOffer beyond January 4, any 1999 (except that the Purchaser may extend the expiration date of the conditions Offer through January 9, 1999 as required to Offeror's obligation to accept for payment, and pay for, Shares (including, comply with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof )). The Per Share Cash Amount shall, subject to applicable withholding of taxes, be net to the Offer. The limitations regarding seller in cash, upon the terms and subject to the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement(including, Offeror shall accept for payment without limitation, the Minimum Stock Condition), Purchaser agrees to, and pay forParent agrees to cause Purchaser to, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for paymentpay, and pay for, pursuant to the Offer as soon promptly as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms for all Shares validly tendered and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offernot withdrawn.
(b) As soon as reasonably practicable on the date of the commencement of the Offer, Offeror shall Parent and Purchaser agree that Parent and Purchaser will file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer which and the other Transactions (as hereinafter defined). Parent and Purchaser agree that the Schedule 14D-1 will contain the or will incorporate by reference an offer to purchase (the "Offer to Purchase") and form forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and such other documents, together with any all supplements or and amendments thereto and including exhibits thereto, being referred to herein collectively as the "Offer Documents"). The Parent and Purchaser will take all steps necessary to ensure that the Offer Documents will comply in all material respects with the provisions of applicable federal and state securities laws and any other applicable laws. Parent, Offeror Parent and Purchaser and the Company each agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it which shall have become false or misleading in any material respect. Offeror will misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (HSC Acquisition Corp), Merger Agreement (Hills Stores Co /De/)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable after the date of this Agreement (and in any event no later than eight (8) Business Days following the date hereofof this Agreement), but in no event later than five business days after the initial public announcement of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (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."
(b) The obligation of Offeror Merger Sub to accept for payment and to pay for any Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject only to to: (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not validly withdrawn a prior to any then-scheduled Expiration Time that number of Shares which, together with any the Shares then beneficially owned by Parent or SubMerger Sub (if any), represents at least ninety (90%) percent a majority of the total number of Shares then outstanding (determined on a fully-fully diluted basis (which assumes conversion or exercise of all derivative securities regardless of the "conversion or exercise price, the vesting schedule or other terms and conditions thereof)) (the “Minimum Condition"”), ; and (ii) the receipt of cash proceeds satisfaction, or waiver by Parent or Merger Sub, of the Financing other conditions and requirements set forth in Annex A (as defined in Section 4.2(dtogether with the Minimum Condition, the “Offer Conditions”) (and shall not be subject to any other conditions). Subject to the prior satisfaction of this Agreementthe Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) in an amount sufficient to consummate the transactions contemplated hereby Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid in cash, without interest, on the terms of and subject to the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I hereto. Offeror expressly reserves this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the right in its sole discretion “Offer to waive any such condition (including the Minimum Condition, provided Purchase”) that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in describes the terms and conditions of the OfferOffer as set forth in this Agreement, including the Offer Conditions. Parent and Merger Sub expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition or to increase the Offer Price; provided, however, that unless -------- ------- otherwise provided by this Agreement or as previously approved in writing by the Company in writingCompany, Offeror will Merger Sub shall not (i) decrease reduce the price per Share payable in number of Shares subject to the Offer, (ii) decrease reduce the maximum number of Shares to be purchased in the OfferOffer Price, (iii) impose conditions change, modify or waive the Minimum Condition, (iv) add to the Offer in addition to those conditions set forth in Annex I hereto, (iv) change the conditions A or otherwise impose any other condition to the Offer in any material respect adverse to the CompanyOffer, (v) except as otherwise provided in the next sentencethis Section 1.1, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend otherwise amend, modify or supplement any other term of the terms of the Offer.
(d) The Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in a manner adverse the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the holders of contrary, but subject to the Shares. Notwithstanding the foregoingparties’ respective rights to terminate this Agreement under Article VIII, Offeror if applicable, Merger Sub (i) may, in its sole discretion, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date on one or more occasions for periods of up to ten (the initial scheduled expiration date being 20 business days following commencement of the Offer10) for a period not to extend beyond July 31, 1998Business Days per extension, if at on any then-scheduled expiration date of the Offer, Expiration Time any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer Conditions shall not be satisfied or or, in Merger Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived and waived, (ii) shall extend the Offer for any period required by applicable Law, any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the NASDAQ Stock Market (“NASDAQ”) applicable to the Offer. The limitations regarding , and, for periods of up to ten (10) Business Days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act and any foreign antitrust, competition or similar Law set forth on Section 1.1(e) of the Parent Disclosure Letter (as it may be modified or supplemented as set forth therein) shall have expired or been terminated and (iii) to the extent requested by the Company on one or more occasions for periods of up to ten (10) Business Days per extension, shall extend (and re-extend) the Offer if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived; provided, however, that in no event shall Merger Sub extend the Offer beyond June 12, 2011 unless, as of such date, all the Offer Conditions, other than the obtaining or achievement of the Requisite Regulatory Approvals (as defined in Annex A) and the condition set forth in section (a) of Annex A to the extent related to the HSR Act or any other antitrust, competition or similar Law, have been satisfied or, in Merger Sub’s sole discretion, waived, in which case such date shall be extended by ninety (90) days (such date, the “End Date”).
(f) On the terms and subject to the conditions of the Offerthis Agreement, as set forth in the second preceding Merger Sub shall, and the immediately preceding sentencesParent shall cause Merger Sub to, shall not be applicable in the event this Agreement is terminated accept and pay for (subject to any withholding of an amount pursuant to Section 8.1(d3.2(b)(iii)) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not validly withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.1). Acceptance for payment of the Offer, Shares pursuant to and subject to compliance the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14e-1(c) 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. Subject Nothing contained in this Section 1.1 shall affect any termination rights in Article VIII, as to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to takeAgreement, or cause in Annex A, as to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(bg) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII.
(h) As soon as practicable on the date of the commencement of the Offer, Offeror Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer which will contain (together with all amendments, supplements and exhibits thereto, the offer “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). The Company shall promptly (and in any event no later than five (5) Business Days following the date of this Agreement) furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents will comply to be filed with the SEC and, immediately following such filing, disseminated to the stockholders of the Company, together with, to the extent requested by the Company, the Schedule 14D-9, in all material respects with applicable federal securities laws each case as and any other applicable lawsto the extent required by the Exchange Act. ParentParent and Merger Sub, Offeror on the one hand, and the Company each 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 it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Offeror will Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents Documents, as so corrected (if applicable), to be filed with the SEC and to be and, immediately following such filing, disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws the Exchange Act. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, 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 applicable laws. The hand and shall give the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on any response and Parent and Merger Sub shall be given an give reasonable consideration to any such comments. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on the such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any amendments thereto prior such comments.
(i) Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)Offer.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I A hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, hereof (but in no event later than five business days after from the initial public announcement of the Offerexecution 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 (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all of the issued and outstanding shares of common stock(i) Common Stock, par value $0.005 0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock"), ) at a price of not less than $10.50 35.00 per Common Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Common Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror.Common Offer Price," provided that Purchaser shall not be required to increase the Common Offer Price) and (ii) Class A Common Stock, par value $0.01 per share, of the 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 Harris Trust and Savings ▇▇▇▇, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in 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 obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if 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 all conditions to the Offer shall first have been satisfied or waived. The obligations of the Purchaser to accept for payment and to pay for any and all Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Subthe Purchaser, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition Offer Price or decrease the number of Shares sought, or impose any additional conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, 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 in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 (vii) amend any other term of the Offer in a any manner adverse to the holders of the SharesShares 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 Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe 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 Section 7.01(b)(i) hereof if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer have not been satisfied or waived. 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. In the event of any increase in the Common Offer Price, (i) extend the Class A Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of 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 paymentPrice will be increased by an equal amount, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to any increase in the terms and conditions of Class A Offer Price, the Common Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub Price will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerincreased by an equal amount.
(b) As soon as practicable on the date of the commencement of Offer is commenced, Parent and the Offer, Offeror Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will contain include, as exhibits, the offer Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Offer Documents when filed will comply as to form 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 other 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 omissions or information supplied in writing for inclusion in the Offer Documents, in each case by the Company. Each of Parent and the Purchaser further agrees to 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 federal securities laws. Parent, Offeror Each of Parent and the Company each agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Offeror will respect and each of Parent and the Purchaser further agrees to 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 as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof initial Schedule 14D-1 before it is filed with the SEC; provided that Offeror will attempt . In addition, Parent and the Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel in writing with any comments Offeror and its or other communications that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated of such comments or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)other communications.
Appears in 2 contracts
Sources: Merger Agreement (Berg Acquisition Co), Merger Agreement (Berg Acquisition Co)
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) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereof, (but in no event later than five business days after following the initial public announcement of the Offerexecution hereof), Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and Company's outstanding shares of common stock, par value $0.005 0.10 per share, of the Company share (the "Shares" or "Common Stock"), at a price of not less than $10.50 2.00 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 cash (as such offer may 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 shall be validly tendered amended in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares whichthis Agreement, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum ConditionOffer"), (ii) the 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 subject to the terms of the Commitments (as defined in said Section 4.2(d)) or 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 set forth in Annex I A hereto. Offeror expressly reserves Purchaser will not, without the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)Company, to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease or change the price per Share form of the consideration payable in the Offer, (ii) decrease the maximum number of Shares sought pursuant to be purchased in the Offer, (iii) impose additional conditions to the Offer in addition to those set forth in Annex I heretoOffer, (iv) change the conditions to the Offer Offer, except that Parent in its sole discretion may waive any material respect adverse of the conditions to the Offer other than the condition set forth in clause (1) of Annex A, which may not be waived without the Company's prior written consent, or (v) except as provided make any other change in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner that is adverse to the holders of the Shares. Notwithstanding Purchaser will, on the foregoingterms and subject to the prior satisfaction or waiver of the conditions to the Offer, Offeror mayaccept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided that, without Purchaser may extend the consent Offer up to the tenth business day after the later of (i) the initial expiration date of the Offer and (ii) the date on which all such conditions shall first have been satisfied or waived. The Company agrees that no Shares held by the Company will be tendered to Parent pursuant to the Offer; provided, that Shares held beneficially or of record by any 6 plan, program or arrangement sponsored or maintained for the benefit of employees of the Company shall not be deemed to be held by the Company, (i) extend regardless of whether the Company has, directly or indirectly, the power to vote or control the disposition of such Shares. The obligations of Purchaser to commence the Offer beyond any scheduled and to accept for payment and to pay for Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the conditions set forth in Annex A hereto.
(b) On the date (the initial scheduled expiration date being 20 business days following of commencement of the Offer) for a period not , Parent and Purchaser shall file or cause 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 (including, be filed with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or 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 Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments thereto, the "Schedule 14D-1") with respect to the Offer Offer, which will shall contain the offer to purchase and form of the related letter of transmittal and summary advertisement other ancillary offer documents and instruments pursuant to which the Offer will be made (collectively, together with any supplements or amendments thereto and including exhibits thereto, the "Offer Documents"). The Parent and Purchaser will disseminate the Offer Documents will comply in all material respects with applicable federal securities laws and any other applicable lawsto holders of Shares. Each of Parent, Offeror Purchaser and the Company each agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become becomes false or misleading in any material respect. Offeror respect and Parent and Purchaser will 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 as and to the extent required by applicable federal securities laws and any other applicable lawslaw. The Company and its counsel shall be given an a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the their filing thereof with the SEC; provided that Offeror will attempt . Parent and Purchaser agree to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and to further provide the receipt thereof. In Company with a reasonable opportunity to participate in all substantive communications with the event that SEC and its staff relating to the Offer is terminated Documents, the Offer or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement)transactions contemplated thereby.
Appears in 2 contracts
Sources: Merger Agreement (Seneca West Corp), Merger Agreement (Harcor Energy Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and no event shall have occurred that and no circumstance shall exist which would result in a failure to satisfy any of the conditions or events set forth in paragraphs Annex A hereto (a) through (i) of Annex I heretothe "Offer Conditions"), Parent shall or shall cause Sub toPurchaser shall, as promptly soon as reasonably practicable following after the date hereof, but hereof (and in no any event later than within five business days after from the initial date of public announcement of the Offerexecution hereof), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock, par value $0.005 .14 2/3 per share, of the Company share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company at a price of not less than $10.50 80.00 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 Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Purchaser of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the 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 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 set forth in Annex I heretoConditions. Offeror Purchaser expressly reserves the right right, in its sole discretion discretion, to waive any such condition (including the Minimum Condition, provided that no such waiver of other than the Minimum Condition shall decrease as defined in the Minimum Condition to less than sixty-six Offer Conditions) and two-thirds (66 2/3%) percent)make any other changes in the terms or conditions of the Offer, to increase provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, to extend changes the Offer and to make any other changes in the terms and conditions form of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share consideration payable in the OfferOffer (other than by adding consideration), (ii) decrease reduces the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to modify or amend the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in 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 Conditions or (vii) otherwise amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding Purchaser covenants and agrees that, subject to the foregoingterms and conditions of this Agreement, Offeror mayincluding but not limited to the Offer Conditions, without it will accept for payment and pay for Shares as soon as it is permitted to do so under applicable law; provided that, Purchaser shall have the consent of the Companyright, (i) in its sole discretion, to extend the Offer beyond any scheduled expiration date (for up to five business days, notwithstanding the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date prior satisfaction of the Offer, any in order to attempt to satisfy the requirements of Section 253 of the conditions DGCL. It is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to Offeror's obligation to accept any such condition (except for paymentany action or inaction by Purchaser or Parent constituting a breach of this Agreement) or, and pay for, Shares (including, except with respect to the Financing Minimum Condition, may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole discretion. Purchaser further agrees that the consummation Holding Co. Merger and the Woodbank Merger will not be closed until the Offer Conditions are otherwise satisfied or waived by Purchaser, and immediately prior to the purchase of the sale Shares by Purchaser pursuant to the Offer. Purchaser agrees that, so long as this Agreement is in effect and all of the Senior Notes Offer Conditions are satisfied other than the conditions to the Offer set forth in clause (as defined in Section 4.2(d)h) of Annex A and the Minimum Condition, at the request of the Company the Purchaser, at its option, shall not be satisfied or waived, extend the Offer until the earlier of (1) such time as such conditions are satisfied or waived waived, and (ii2) extend the date chosen by the Company which shall not be later than (x) the Outside Date (as defined herein), (y) the earliest date on which the Company reasonably believes such condition will be satisfied; provided, that the Company may request further extensions up until the Outside Date if the Offer for any period required by any ruleConditions set forth in clause (h) and the Minimum Condition are still the only Offer Condition not satisfied unless this Agreement has been terminated pursuant to the provisions of Article VIII.
(b) As soon as reasonably practicable on the date the Offer is commenced, regulation, interpretation or position of Purchaser shall file a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer with the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer). The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
(b) As soon as practicable on the date of the commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect shall contain an Offer to the Offer which will contain the offer to purchase Purchase and form forms of the related letter of transmittal (which Schedule 14D-1, Offer to Purchase and summary advertisement (other documents, together with any supplements or amendments thereto and including exhibits thereto, are referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects Parent and Purchaser agree that the Company and its counsel shall be given an opportunity to review the Schedule 14D-1 before it is filed with applicable federal securities laws and any other applicable lawsthe SEC. Parent, Offeror Purchaser and the Company each agree agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Offeror will , and Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Offeror will provide the Company and its counsel with any comments Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Dillard Department Stores Inc), Merger Agreement (Mercantile Stores Co Inc)