The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. 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to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer.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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 (Covidien PLC), Merger Agreement (Covidien Delaware Corp.), Merger Agreement (Power Medical Interventions, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 and 8.1, (ii) none of the events described set forth in any of Annex I (other than paragraphs (af) or and (bi)) of Annex III hereto shall have occurred and be continuing and (unless waived by Parent or Sub)iii) the Company shall have complied with its applicable obligations under Section 1.2, Sub shallas promptly as practicable after the effectiveness of the Form 10, and Parent in any event, within five (5) business days thereafter, the Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) the Offer within ten Offer, subject to (10i) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by the Purchaser, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (as it may be extended in accordance with requirements if a greater majority) upon the adoption of this Section 1.1(a)Agreement (collectively, the “Minimum Condition”) shall be subject only to and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex III hereto. I. Subject to the prior satisfaction or waiver by Parent or Sub the Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex III heretoI, Sub shall, and Parent the Purchaser shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment exchange, and pay for exchange the Offer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn promptly following the acceptance of Shares for payment pursuant shall be subject to the Offer. Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to purchase exchange (the “Offer to PurchaseExchange”) that contains the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub I. The Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or Consideration, change the form of consideration payable in which any component of the Offer Price is payable, decrease or reduce the maximum number of Shares sought to be purchased in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 Company. For the avoidance of doubt: (such consent to x) if on the Initial Expiration Date (as it may be authorized by the Company Board of Directors or a duly authorized committee thereofextended). Notwithstanding the foregoing, but subject all conditions to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1Offer shall not have been satisfied or waived, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, in its sole discretion, extend the Offer if at the scheduled or extended Initial Expiration Date the Minimum Condition is not satisfiedDate, for up to two periods of ten such period as the Purchaser may determine, (10y) business days per extension or (iii) extend the Offer for any period required by any rulePurchaser may, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”)in its sole discretion, or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActAct and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
(b) On Notwithstanding anything to the date contrary contained in this Article I, no certificates or scrip representing fractional shares of commencement Purchaser Common Stock shall be issued upon the surrender for exchange of the Shares pursuant to the Offer, Parent 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 Sub 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 the Offer is commenced, the Purchaser shall (i) file with the Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (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 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 includeinclude the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase Exchange and a form of letter of transmittal and summary advertisement (collectivelycollectively with the Prospectus, and together with any amendments and supplements theretothereto and to the Prospectus, the “Offer Documents”). Subject The Purchaser shall cause the Offer Documents to Section 5.2be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws. The Company shall provide the Purchaser with all information concerning the Company and its directors, officers and affiliates as shall be required to be included in the Offer Documents and the Registration Statement. The Company and its counsel shall be given a reasonable opportunity to review the 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 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 disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws.
(f) The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered to the Purchaser pursuant to the Offer. 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 clause (iii) of Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of 3.4
(g) Notwithstanding anything herein to the contrary, the Purchaser, the Company or the Exchange Act. Parent and Sub agree to take all commercially reasonable steps Agent may withhold the Offer Consideration as it reasonably deems 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 satisfy its withholding obligations under applicable Law. Parent and Sub, on the one handlaw, and the Company, on withholding of any such Offer Consideration for such purpose shall be treated as the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and payment thereof to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree Person from whom such amount was withheld for purposes of determining whether such Person received amounts to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it which such Person is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretoentitled hereunder.
(c) Parent shall provide or cause to be 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 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 (New 360), Merger Agreement (Point 360), Merger Agreement (DG FastChannel, Inc)
The Offer. (a) Provided that this Agreement As promptly as practicable following the --------- execution hereof, the Purchaser shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (amake a public announcement pursuant to Rule 14d-2(e) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder"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”) an offer (the "Offer") to purchase all of the issued and outstanding shares of common stock, par value 0.01 Netherlands Guilders per share, of the Company (referred to herein as either the "Shares" or "Company Common Stock") for (i) $30.00 per Share, net of fees and commissions, to the seller in cash (the "Offer Price"), subject to there being, at the expiration of the Offer, validly tendered and not withdrawn that number of Shares which represent at least ninety percent (90%) of the Offer within ten capital stock entitled to vote and then outstanding (10the "Minimum Condition") business days following and to the date other conditions set forth in Section 6.1 hereof. 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 practicable after it is permitted to do so under the Exchange Act (the "Closing Date"). The obligations of Sub the Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex III hereto. 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 OfferSection 6.1 hereof. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains containing the terms set forth in this Agreement Minimum Condition and the other conditions set forth in Annex III heretoSection 6.1 hereof. Parent expressly reserves Without the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 of the Company or a duly authorized committee thereof). Notwithstanding , the foregoing, but subject Purchaser shall not (i) decrease the Offer Price or change the form of consideration payable pursuant to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1Offer (other than as set forth below), Sub shall(ii) decrease the number of Shares sought or extend the Offer (other than as set forth below), upon the written request or (iii) impose any additional conditions or amend any condition of the Company at least one business day before Offer in any manner adverse to the then-holders of the Shares; provided, however, that if on the scheduled expiration datedate of the Offer (as it may be extended), and 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. In addition, the Purchaser may, without the consent of the Company, (i) increase the Offer Price and extend the Offer beyond to the initial expiration extent required by law.
(b) As soon as practicable on the date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at is commenced, 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 or interpretation of Purchaser shall file with the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b"Commission") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”). The Schedule TO shall 14D-1") which will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement with respect to the Offer (collectively, together with any amendments and supplements 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 Purchaser represents that the Offer Documents will comply in all material respects with all applicable the provisions of the Exchange ActAct 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. Parent and Sub agree The Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject Commission and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act and other applicable Lawfederal securities laws. Parent and SubThe Purchaser, on the one hand, and the Company, on the other hand, 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 and misleading in any material respect or as otherwise required by Law. Parent respect, and Sub the Purchaser further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule TO and any amendment thereto Offer Documents before it is they are filed with the SECCommission. In addition, and Parent and Sub shall give due consideration the Purchaser agrees to all reasonable additions, deletions or modifications thereto suggested by provide the Company and its legal counsel. In addition, Parent and Sub agree to provide counsel in writing any comments the Company with any comments, whether written Purchaser or oral, that Parent, Sub or their its counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC Commission or its staff with respect to the Offer Documents, Schedule 14D-l promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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: Acquisition Agreement (Renaissance Hotel Group N V), Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Marriott International Inc)
The Offer. (a) Provided that As promptly as practicable after the date hereof (but in no event more than ten (10) days after the date of this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or SubAgreement), Merger Sub shall, shall (and Parent shall cause Merger Sub to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act, a tender offer (the “Offer”) to purchase all of 1934the outstanding shares of Company Common Stock at a price per share equal to $12.80 net to seller in cash, as amended without interest (together such amount or any higher amount per share of Company Common Stock paid pursuant to the Offer in accordance with the rules and regulations promulgated thereunderthis Agreement, the “Exchange ActOffer Price”)) , subject to any deduction or withholding of Taxes required by Applicable Law, on the Offer within ten (10) business days following terms and subject to the date hereofconditions set forth in this Agreement. The obligations consummation of the Offer, and the obligation of Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock validly tendered and not withdrawn prior pursuant to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) Offer, shall be subject only to: (i) there 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 conditions set forth in Annex III hereto. Subject 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 prior satisfaction number of shares of Company Common Stock then owned by Parent, Merger Sub or waiver any of their respective “affiliates” (as defined by Parent or Sub Section 251(h)(6) of conditions set forth in Annex III heretothe DGCL), Sub shallrepresents a majority of the shares of Company Common Stock then outstanding (the “Minimum Condition”), and Parent shall cause Sub to, consummate the Offer (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 this Agreement, of the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) at or as promptly as practicable following the Expiration Time (in any event, no later than the Business Day immediately following the date on which the Expiration Time occurs), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the 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 funds to the depositary for the Offer) for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The Parties agree that the Offer and Merger Sub’s obligation to accept for payment and pay for all Shares shares of Company Common Stock validly tendered and not validly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Offer in accordance with the foregoing are not, and shall not be, subject to any condition other than the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains describes the terms set forth and conditions of the Offer in accordance with this Agreement and Agreement, including the conditions set forth in Annex III heretoOffer Conditions. Parent Merger Sub expressly reserves the right (in its sole discretion) to waive any of such conditions, to (i) increase the Offer Price Price, (ii) waive any Offer Conditions (other than the Minimum Condition and to the Termination Condition) and (iii) make any other changes in to the terms and conditions of the Offer not inconsistent with the terms of the Offerthis Agreement; provided, however, that without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, : (A) decrease the Offer Price or Price, (B) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought 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 or change the Minimum Condition or the Termination Condition, (as defined in Annex III hereto)E) add any condition to the Offer, modify or amend make any of the conditions set forth in Annex III hereto 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 (I) modify, supplement or amend any other term or condition of the Offer, Offer in each case in any a manner adverse to the holders of Company Common Stock (other than Parent, Merger Sub and their respective Affiliates) or the Company.
(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 (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, the “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 Common Stocka written notice of the Company’s election that Merger Sub not so extend the Offer, impose any conditions to the Offer that are Merger Sub shall not set forth on Annex III hereto, or (and Parent shall not permit Merger Sub to) extend the Offer beyond such scheduled Expiration Time. Notwithstanding anything to the contrary in the foregoing, (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 that is twenty-one later than the Termination Date, (21B) business days after commencement 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 and (C) Merger Sub shall extend the Offer for any period or periods required by Applicable Law, including applicable rules, regulations, interpretations or positions of the Offer SEC or its staff, or the last extension Nasdaq Global Select Market.
(as permitted in accordance with this Section 1.1), if any, of f) Merger Sub shall not (and Parent shall not permit Merger Sub to) terminate the Offer, whichever is later (the “Offer prior to any scheduled Expiration Date”) except as set forth below, in each case 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 (such consent to be authorized by Common Stock pursuant thereto. If the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject Offer is validly terminated prior to the parties’ respective rights 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 terminate this Agreement return, in accordance with Section 8.1Applicable Law, Sub shallall tendered shares of Company Common Stock to the registered holders thereof.
(g) Parent shall cause to be provided to Merger Sub, upon the written request on a timely basis, all of the funds necessary to purchase all shares of 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 the initial expiration date if, at any scheduled (or extended) expiration of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, any and shall cause Merger Sub to perform, on a timely basis, all of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 Merger Sub’s obligations under the Exchange Actthis Agreement.
(bh) On As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, include as exhibits, exhibits (without limitation) the Offer to Purchase and Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement and a form of notice of guaranteed delivery (collectivelythe 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”). Subject to Section 5.2, The Company shall promptly furnish all information concerning the Company hereby consents and its Affiliates to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred Parent as may be reasonably requested by Parent to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Actbe included therein. Parent and Merger Sub agree to take all commercially reasonable steps necessary to shall promptly 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 SharesCompany Common Stock, in each case as and to the extent required by applicable 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 necessary 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. 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 Subshall provide the Company with copies of all correspondence between Parent and its respective Representatives, on the one hand, and the CompanySEC, on the other hand. Parent shall 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, agree prior to promptly correct any information provided by it for use in filing or mailing the Offer Documents if and (or any amendment or supplement thereto) or responding to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with comments of the SEC and disseminated to holders of Shareswith respect thereto, in each case as and to Parent shall (i) provide the extent required by applicable Law. The Company shall be given a reasonable with an opportunity to review and comment on such document or response (including the Schedule TO and any amendment thereto before it is filed with the SECproposed final version of such document or response), and Parent and Sub shall give due consideration to (ii) consider in good faith all reasonable additions, deletions or modifications thereto suggested comments reasonably proposed by the Company and its legal counsel(iii) not file or mail such document or respond to the SEC prior to receiving the approval of the Company, which approval shall not be unreasonably withheld, delayed or conditioned. In additionWithout limiting the foregoing, Parent and Sub agree to provide the Company with any comments, whether written or oral, that Parent, Sub or their and its counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult participate with Parent, Parent and Merger Sub and or their counsel prior in any discussions or meetings with the SEC related to responding 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 such comments, either other action (other than qualifying to do business in written any jurisdiction in which it is not now so qualified) required to be taken under the Exchange Act or oral formany applicable foreign or state securities laws and the rules and regulations thereunder in connection with the Offer and the Merger. The Company and its legal counsel Parent shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments responsible for 100% of the Company fees, costs and its legal counsel expenses (except for the fees, costs and expenses of the Company’s advisors), including any filing fees, associated with respect thereto.
(c) Parent shall provide or cause to be provided to Sub promptly following the expiration preparation, filing and mailing 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawDocuments.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)
The Offer. (a) Provided that this Agreement shall not have been --------- terminated in accordance with Section 8.1 7.1 and none of the events described set forth in any of paragraphs Annex A hereto (aother than the events set forth in clause (g) or (bthereof) of Annex III hereto shall have occurred and or be continuing continuing, as promptly as practicable (unless waived by Parent or Subbut in no event later than five business days from the public announcement of the execution hereof), Merger Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules "EXCHANGE ACT")) an offer (the "OFFER") to purchase for cash all of the issued and regulations promulgated thereunderoutstanding shares of Common Stock, par value $.01 per share (each a "SHARE" and, collectively, the “Exchange Act”"SHARES" or the "COMPANY COMMON STOCK")) , of the Company, at a price of $55.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, the "OFFER PRICE"). Merger Sub shall, on the terms and subject only to the prior satisfaction or waiver of the conditions of the Offer within ten set forth in Annex A hereto (10except that the Minimum Condition (as defined herein) business days following may not be waived by Parent or Merger Sub without the date hereofconsent of the Company), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of Merger Sub to accept for payment and to pay for any and all Shares validly tendered on or before the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to before the expiration of the Offer Offer, that number of Shares which, together with any Shares beneficially owned by Parent or Merger Sub, represent at least a majority of the Shares outstanding on a fully diluted basis (as it may be extended in accordance with requirements of this Section 1.1(a)the "MINIMUM CONDITION") shall be subject only to and (ii) the other conditions set forth in Annex III hereto. Subject to A hereto (the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto"ADDITIONAL CONDITIONS" and, Sub shalltogether with the Minimum Condition, 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"OFFER CONDITIONS"). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”"OFFER TO PURCHASE") that contains containing the terms set forth in this Agreement and the conditions set forth in Annex III heretoOffer Conditions. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Merger Sub shall not, not amend or waive the Minimum Condition and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offersought, waive or change the Minimum Condition (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, in each case Offer in any manner adverse to the holders of the Company Common StockShares or, impose any conditions to except as provided in the Offer that are not set forth on Annex III heretonext two sentences, or extend the Offer beyond a expiration 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)Company. Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Merger 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 on one or more occasions for an aggregate period of not more than 20 days, if at the initial scheduled or extended expiration date if, at any scheduled (or extended) expiration of the Offer, the Minimum Condition shall not be satisfied, (ii) extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) August 31, 1998; provided, however, that notwithstanding the foregoing, if all Offer Conditions -------- ------- other than the HSR Condition (as defined in Annex A hereto) have been satisfied or waived, Merger Sub may, if such HSR Condition is reasonably capable of being satisfied, extend the Offer without the consent of the Company until October 31, 1998 (either such date, as applicable, being the "EXTENSION DATE"), if at the scheduled or extended expiration date of the Offer any of the conditions set forth in Annex III hereto Offer Conditions (other than the Minimum Condition) which are reasonably capable of being satisfied shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionwaived, (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, interpretation or interpretation position of the United States Securities and Exchange Commission (“the "SEC”), ") or the staff thereof, thereof applicable to the Offer and (iv) extend the Offer on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date 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. Notwithstanding the foregoing, if requested by the Company, Merger Sub shall, and Parent agrees to cause Merger Sub to, extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) the Extension Date if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all Offer Conditions have not been satisfied or waived and all such conditions are reasonably capable of being satisfied. In addition addition, the Offer Price may be increased and the Offer may be extended to the foregoing and excluded from any extent required by law in connection with such limitationsincrease, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under each case without the Exchange Actconsent of the Company.
(b) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO 14D- 1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”"SCHEDULE 14D-1"). The Schedule TO shall 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or 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 agree further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. Parent respect, and Merger Sub further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the initial Schedule TO and any amendment thereto 14D-1 before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Merger Sub agree to provide the Company and its counsel in writing with any comments, whether written comments or oral, other communications that Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or other communications, 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 to be provided to Merger Sub promptly following the expiration all 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 purchase any shares of Company Common Stock that have been validly tendered and not withdrawn Merger Sub becomes obligated to purchase pursuant to the Offer and that Sub is obligated Offer.
(d) Upon the consummation of the Offer, Parent agrees to accept for payment pursuant make a loan to the Offer and permitted Company, on commercially reasonable terms, in an amount sufficient for the Company to accept make payments to holders of Company Stock Options as set forth in Section 2.4 hereof, or, if such amount cannot be borrowed by the Company for payment under applicable Lawany reason, to contribute such amount to the 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 this Agreement shall not have been terminated in accordance with Section 8.1 8.1, as promptly as practicable following the date hereof and none of the events described in any event within five (5) Business Days following the date of paragraphs this Agreement (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subsuch other later date as the parties may mutually agree in writing), Parent and Merger Sub shall(i) shall amend the Offer to reflect the execution of this Agreement and the terms hereof, (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 Parent shall cause Sub toall other necessary documents and exhibits with the Securities and Exchange Commission (the “SEC”) and make all deliveries, commence (within filings, publications, mailings and telephonic notices required to be made in connection with the meaning Offer under the federal securities Laws, including Regulations 14D and 14E of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the “Exchange Act”)) (such documents filed or required to be filed with the SEC and such other filings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) shall use their reasonable best efforts to consummate the Offer. If the Offer within ten (10) business days following the date hereof. The obligations of is consummated, Parent will cause Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock tendered pursuant to the Offer, subject only to the conditions that (i) there shall be validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements such number of this Section 1.1(a)) shall be subject only shares of Company Common Stock that, when added to the shares of Company Common Stock already owned by Parent, Merger Sub and their Subsidiaries, would constitute at least a majority of the shares of Company Common Stock outstanding determined on a Fully Diluted Basis immediately prior to the date of expiration of the Offer (the “Minimum Condition”) and (ii) the other conditions set forth in Annex III hereto. Subject to I hereto (collectively with the Minimum Condition, the “Tender Offer Conditions”) have been satisfied or waived in writing by Parent.
(b) Without 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the Offer; providedCompany, however, that Parent and Merger Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares shares of Company Common Stock sought to be purchased in the Offer, waive or change impose additional conditions to the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify Offer or amend any other term or condition of the Offer, Offer in each case in any a manner that is materially adverse to the holders of the shares of Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a except as provided in this Agreement. The initial expiration 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)shall be December 27, if any, of the Offer, whichever is later 2006 (the “Expiration Date”) except as set forth below,” unless the period of time for which the Offer is open shall be extended in accordance with the immediately following sentence, in each case without which event the prior written consent 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 consent to be authorized by the Company Board of Directors or a duly authorized committee thereofsubsequent offering period). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, ,
(i) Parent and Merger 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) from time to time, in their sole discretion, extend the Offer beyond 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 initial expiration date if, at any scheduled (or extended) expiration of the Offer, Expiration Date any of the conditions set forth in Annex III hereto Tender Offer 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, then, if requested by the Company, Parent and Merger Sub shall not extend the Expiration Date one or more times (the period of each such extension to be satisfied or waived determined by Merger Sub) for up to two periods 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 satisfied and the Company has not more than ten received an Acquisition Proposal that has not been withdrawn;
(10iii) business days per extensionif (A) the Company has not received an Acquisition Proposal that has not been withdrawn, (iiB) from time the failure to time, extend the Offer if at the scheduled or extended Expiration Date achieve the Minimum Condition is not a result of the Company having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) 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 result of a breach of this Agreement by Parent or Merger Sub, then, if at any scheduled 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 up such period (not to two periods 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 per extension or 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 Offer for any period required by any ruleExpiration Date, regulation or interpretation of the United States Securities then Parent and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Merger Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of 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 shall file with the SEC, pursuant to Regulation M-A under the Exchange Act may (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to ) increase the Offer (together with all amendments, supplements Price and exhibits thereto, extend the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 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 Company except in the event that this Agreement is terminated pursuant to Section 8.1 hereof.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Tender Offer Conditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub to accept for payment and pay for any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after such Expiration Date (such date as Merger Sub shall be obligated to accept for payment 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 notwithstanding 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 unless the Minimum Condition shall have been satisfied.
(d) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. Parent and Merger Sub further agree 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 Lawfederal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed Offer Documents in advance of their filing with the SEC, SEC and dissemination to stockholders of the Company. Parent and Merger Sub shall give due consideration provide to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent counsel copies in writing of any comments and Sub agree to provide shall inform the Company with of any comments, whether written or oral, oral comments that Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such written and oral comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretoproposed responses.
(c) Parent shall provide or cause to be 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 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 (Pilgrims Pride Corp), Merger Agreement (Gold Kist Inc.), Merger Agreement (Gold Kist Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 As promptly as practicable (and none of the events described in any of paragraphs event within seven Business Days) after the date hereof, the Purchaser shall (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub Purchaser to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) , the Offer within ten to purchase all the outstanding Shares at the Offer Price, subject to: (10i) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares there being validly tendered in the Offer and not properly withdrawn prior to the expiration Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Offer Shares then outstanding (as it may be extended in accordance with requirements determined on a fully diluted basis assuming conversion or exercise of this Section 1.1(aall derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”); and (ii) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction satisfaction, or waiver by Parent or Sub the Purchaser, of the other conditions set forth herein and in Annex III heretoI.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, Sub shallor waiver by Parent or the Purchaser, of the other conditions set forth herein and in Annex I, the Purchaser shall (and Parent shall cause Sub the Purchaser to, consummate the Offer in accordance with its terms and ) accept for payment and pay for all Shares validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer 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 contains describes the terms set forth and conditions of the Offer in accordance with this Agreement Agreement, including the Minimum Condition and the other conditions set forth in Annex III hereto. I. Parent and the Purchaser expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease (iii) reduce the maximum number of Shares sought to be purchased in the Offer, (iv) amend or waive or change the Minimum Condition Condition, (as defined in Annex III hereto), modify or v) amend any of the other conditions to the Offer set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, I in each case in any a manner adverse to the holders of Shares or (vi) extend the Company Common StockExpiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, impose any conditions to the Offer that are not set forth shall expire at midnight (New York City time) on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after 20 Business Days from and including the date of the commencement of the Offer or (the last extension (as permitted “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Section 1.1)Agreement, if anythe date on which the Offer has been so extended (the Initial Expiration Date, of or such later date to which the OfferInitial Expiration Date has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) except as 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 belowherein and in Annex I) have not been satisfied, in each case without or waived by Parent or 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 foregoingPurchaser, but subject to the parties’ respective rights to terminate and if this Agreement shall not have been terminated in accordance with Section 8.1Article 7, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and mayPurchaser may (in its sole discretion, without the consent of the Company) and, to the extent requested by the Company in writing prior to such scheduled Expiration Date, shall (iand Parent shall cause the Purchaser to) extend the Offer beyond for successive periods of up to 20 Business Days each, the initial expiration date iflength of each such period to be determined by Parent in its sole discretion, at any scheduled (or extended) expiration in order to permit the satisfaction of such conditions; provided, however, that the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) Purchaser shall not be satisfied or waived for up required to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at any condition to the scheduled Offer has not been satisfied on or extended Expiration Date prior to May 22, 2013 (the Minimum Condition is “Outside Date”), beyond the Outside Date. In addition, if this Agreement shall not satisfiedhave been terminated in accordance with Article 7, for up to two periods of ten (10) business days per extension or (iii) the Purchaser shall extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the United States U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) Notwithstanding the foregoing, 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, in its sole discretion (and Parent may cause the Purchaser to), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct of up to 10 Business Days, the length of the initial “subsequent offering period” and each extension thereof to be determined by the Purchaser in its sole discretion. 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 pay for, all Shares that are validly tendered pursuant to the Offer 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).
(bg) On 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), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn 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 to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, Parent and Sub the Purchaser shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (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 letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Parent 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 provisions of the Exchange Act. Parent and Sub Purchaser 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 Lawthe Exchange Act. The Company shall promptly provide Parent and the Purchaser in writing, for inclusion in the Offer Documents, all information concerning the Company that is required under the Exchange Act to be included in the Offer Documents. Parent and Subthe 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 or as otherwise required by applicable Law. , and Parent and Sub further the Purchaser agree to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communicationswritten responses, and Parent and Sub the Purchaser shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect theretocounsel.
(c) Parent shall provide or cause to be 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 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, Merger Agreement (Allergan Inc), Merger Agreement (MAP Pharmaceuticals, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 8.01 hereof and that none of the events described set forth in any of paragraphs clause (a) or (b2) of Annex III Exhibit A hereto shall have occurred and or be continuing (unless waived by Parent or Sub)existing, Sub shall, and Parent shall cause Sub to, promptly (but in no event later than five business days following the public announcement of the terms of this Agreement) to 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”"EXCHANGE ACT")) an offer to purchase all outstanding shares of common stock of the Offer within ten Company, par value $.01 per share (10) business days following the date hereof. The obligations "SHARES"), at a price of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior $5.25 per Share, net to the expiration of seller in cash (the Offer (as it may be extended in accordance with requirements of this Section 1.1(a"OFFER")) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of the Offer Conditions (as defined below) and the terms and conditions set forth in Annex III heretoof this Agreement, 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 validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer as soon as practicable under applicable law. The obligation of Sub to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant thereto shall be made by means of an offer subject to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the only those conditions set forth in Annex III hereto. Exhibit A hereto (the "OFFER CONDITIONS"), which may be asserted by Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms or Sub regardless of the Offer; providedcircumstances giving rise to any such condition, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change (except as set forth below with respect to the Minimum Condition (as defined in Annex III heretoExhibit A)) waived by Parent or Sub, modify in whole or amend in part, at 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 conditions set forth its Subsidiaries (as defined in Annex III hereto or otherwise modify or amend any other term or condition of Section 9.11 hereof) will be tendered to Sub pursuant to the Offer. Sub will not, in each case in any manner adverse to the holders of the Company 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, 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 decrease or change the Offer beyond form of the initial expiration date if, at any scheduled (or extended) expiration of consideration payable in the Offer, (ii) decrease the number of Shares sought pursuant to the Offer (except as otherwise set forth in Section 1.01(c) hereof), (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer (provided, that Parent or Sub in their sole discretion may waive any of the conditions set forth in Annex III hereto (to the Offer other than the Minimum Condition) shall not be satisfied or waived for up to two periods (v) make any other change in the terms or conditions of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at which is materially adverse to the holders of the Shares. If the conditions set forth in Exhibit A are satisfied as of any scheduled or extended Expiration Date expiration date of the Minimum Condition is not satisfiedOffer, for up to two periods of ten (10) business days per extension or (iii) Sub may extend the Offer for any 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 set forth in Exhibit A are not satisfied or, to the extent permitted by this Agreement, waived by Parent or Sub as of any rulescheduled expiration date, regulation or interpretation 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 United States Securities and Exchange Commission Company, Sub will extend the Offer from time to time until the earlier of the consummation of the Offer or forty business days from the date hereof (“SEC”)provided, or the staff thereof, applicable that Sub shall not be obligated to the Offer. In addition to the foregoing and excluded from make any such limitationsextension if (i) it reasonably determines that all such conditions are not likely to be satisfied by such date or (ii) it shall then have the right to terminate this Agreement, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Actpursuant to its terms).
(b) On the date of commencement of the Offer, Parent and Sub shall file or cause to be filed with the Securities and Exchange Commission (the "SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ") a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"SCHEDULE 14D-1") with respect to the Offer Documents”). Subject which shall contain the offer to Section 5.2purchase and related letter of transmittal and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively with any supplements or amendments thereto, 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"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent Company and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed Offer Documents prior to their filing with the SEC, and Parent and Sub shall give due consideration to 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, and to consult with the Company regarding, any comments, whether written or oral, comments that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, be received from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretothereof.
(c) Parent shall provide or cause to be provided to Sub promptly following In the event that the Minimum Condition is not satisfied on any scheduled expiration date 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 but there shall have been validly tendered and not withdrawn as of such expiration date a majority of the outstanding Shares on a fully diluted basis, Sub shall 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 sought pursuant to the 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 then outstanding (the "REVISED MINIMUM NUMBER"), (B) extend the Offer and that Sub is obligated to accept for payment pursuant a period of not less than ten business days following the public announcement of such amendment to the Offer (the Offer, as so amended, being sometimes referred to as the "49.9% OFFER") and permitted to accept for payment under applicable Law(C) if, at the expiration of 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) Parent shall not, and shall cause Sub not to, commence (within the meaning of Rule 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 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)10.01, Sub shall, and Parent shall cause Sub to, and Sub shall, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)▇▇▇▇ ▇▇▇) the Offer within as promptly as practicable after such date (but in no event later than ten (10) business days Business Days following such date or such later date as the date hereofparties may mutually agree in writing). The obligations of 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 1934 Act (relating to Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(aAgreement)) , subject to the condition that there shall be subject only 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, a number of Shares that, together with the Shares then beneficially owned by Parent and its Affiliates, represents at least a majority of the total number of Shares then outstanding on a Fully Diluted Basis (the “Minimum Condition”) and to the other conditions set forth in Annex III heretoI (together with the Minimum Condition, the “Offer Conditions”) and to no other conditions. 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 of conditions set forth in Annex III heretoSub, Sub shall, shall (and Parent shall cause Sub to, ) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares 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 made subject only to the satisfaction, or waiver (except for the Minimum Condition) by means Parent or Sub, of an offer 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 purchase the Offer.
(the “Offer to Purchase”b) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent Sub expressly reserves the right to waive (except for the Minimum Condition) any of such conditions, to increase the Offer Price Conditions and to make any other changes in the terms of or conditions to the Offer; providedprovided that without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (i) no change may be made that changes the form of consideration to be paid, however, that Sub shall not, and Parent shall cause Sub not to, decrease or decreases the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive (ii) no change may be made that amends or change adds to the Minimum Condition (as defined in Annex III hereto), modify Offer Conditions or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend amends any other term or condition of the Offer, in each case in any manner that is adverse to the holders shareholders of the Company Common StockCompany, impose and except for any conditions to 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 are not set forth on Annex III heretothis Agreement is terminated pursuant to Section 10.01.
(c) Unless extended as provided in this Agreement, or extend the Offer beyond a shall initially expire at 12:00 midnight, New York City time on the date (the “Initial Expiration Time”) that is twenty-one twenty (2120) business days Business Days after the commencement of the Offer or (determined pursuant to Rule 14d-1(g)(3) and Rule 14e-1(a) under 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 thereof1934 Act). Notwithstanding the foregoing, but subject to (i) Sub shall (or at 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, (iParent shall cause Sub to) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, if at the Initial Expiration Time or any of extension thereof the conditions set forth in Annex III hereto 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) shall not be satisfied or waived ), for up to two successive extension periods of not more than ten (10) business days per extension, Business Days each (except as required by Law) in order to permit the satisfaction of the Offer Conditions 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) Sub shall extend the Offer for any period required by any Law or by any rule, regulation regulation, interpretation or interpretation position of the United States U.S. Securities and Exchange Commission (the “SEC”), ) or the staff thereof, 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. In addition to Following expiration of the foregoing and excluded from any such limitationsOffer, Sub also may may, in its sole discretion, provide a “subsequent offering period” period (“Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act1934 Act if, as of the expiration of the Offer, all of the Offer Conditions have been satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that 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 and pay for, as 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 reduction for any applicable withholding Taxes payable in respect thereof in accordance with Section 2.07.
(bd) On the date of commencement of the Offer, Parent and Sub shall (i) file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”). The Schedule TO ) with respect to the Offer, which shall include, as exhibits, an offer to purchase and a related letter of transmittal, a summary advertisement and other ancillary documents pursuant to which the Offer to Purchase and a form of letter of transmittal and summary advertisement will be made (collectively, together with any exhibits, amendments and or supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents and (ii) to the inclusion in extent required by applicable U.S. securities Laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent and Sub agrees that it shall cause the recommendation Schedule TO and the approval of the Company Board of Directors referred to in Section 3.20(a). The other Offer Documents will filed by any of them with the SEC to comply in all material respects with all applicable provisions of the Exchange Act. Parent 1934 Act and 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 rules and to the extent required by regulations thereunder and other applicable Law. Parent and SubEach of Parent, on the one hand, Sub and the Company, on the other hand, agree Company 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 or as otherwise required by Law. respect, 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 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 documents 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 a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed Offer Documents prior to the filing thereof with the SEC, and Parent and Sub shall give due reasonable and good faith consideration to all reasonable additions, deletions or modifications changes thereto suggested by the Company and its legal counselcounsel that Parent reasonably determines to be appropriate. In addition, Parent and Sub agree to provide the Company and its counsel with any comments, whether written or oral, that comments Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to before responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due reasonable and good faith consideration to all reasonable each response to those views and comments of the Company and its legal counsel related thereto that Parent reasonably determines to be appropriate. Each of Parent and Sub shall respond promptly to any comments of the SEC or its staff with respect theretoto the Offer Documents or the Offer.
(ce) Parent shall provide or cause to be provided to Sub as promptly as practicable following the expiration of the Offer or and any subsequent extension thereofSubsequent Offering Period, 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 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 this Agreement shall not have been terminated As promptly as practicable but in accordance with Section 8.1 and none no event later than the fifth business day after the public announcement of the events described in any execution of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Sub shall, and Parent shall cause Acquisition Sub to, to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together the "Exchange Act")), and Acquisition Sub shall commence, an offer (as amended or supplemented in accordance with the rules and regulations promulgated thereunderthis Agreement, the “Exchange Act”"Offer") to purchase for cash all issued and outstanding Shares at a price of $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 (such prices, or such higher prices per Share as may be paid in the Offer, being referred to as the "Offer Prices")) the Offer within ten (10) business days following the date hereof. The obligations obligation of Sub Acquisition Sub, and of Parent to cause Acquisition Sub, to consummate the Offer, to accept for payment and to pay for any Shares validly tendered 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 to only to the those conditions set forth in Annex III hereto. 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 A hereto (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 to waive any of such conditions, to increase the Offer Price and to make any other changes which may be waived by Acquisition Sub in the terms of the Offerits sole discretion; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 mayprovided that, without the consent of the Company, Acquisition Sub shall not waive the Minimum Tender Condition (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth as defined in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”A), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act).
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Acquisition Sub shall file with the Securities and Exchange Commission (the "SEC, pursuant ") with respect to Regulation M-A under the Exchange Act (“Regulation M-A”), Offer a Tender Offer Statement on Schedule TO with respect to 14D-1 (the Offer (together with all amendments"Schedule 14D-1"), supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 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 supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Parent will deliver copies of the proposed forms of the Schedule 14D-1 and the Offer Documents (as well as any change thereto) to the Company within a reasonable time prior to the commencement of the Offer for prompt review and comment by the Company and its counsel. Parent will provide the Company and its counsel in writing any comments 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. Parent and Acquisition Sub represent that the Schedule 14D-1 and the Offer Documents (including any amendments or supplements thereto) (i) shall comply as to form in all applicable provisions material respects with the requirements of the Exchange Act. Parent Act and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be rules and regulations thereunder and (ii) shall not, in the case of the Schedule 14D-1 at the time filed with the SEC andand at the time the Offer is consummated and in the case of the Offer Documents when first published, subject sent or given to the Company’s compliance with Section 1.2(c)stockholders of the Company and at the time the Offer is consummated, disseminated contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements therein, in each case 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 to supplied by the extent required by applicable LawCompany in writing specifically for inclusion in the Schedule 14D-1 or the Offer Documents (including any amendments or supplements thereto). Parent and Sub, on the one hand, and the Company, on the other hand, agree to Acquisition Sub shall promptly correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the such Schedule 14D-1 or Offer Documents as so corrected to be filed with the SEC and disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable Lawlaw. The 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 shall be given and its counsel with a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocomment.
(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 Shares, impose additional conditions to the 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 such condition is satisfied or waived, if such condition may in the reasonable judgment of Acquisition 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 promptly following on a timely basis the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly accept for payment, and pay in full in cash the aggregate Offer Price for those for, Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Acquisition Sub is becomes obligated to accept for payment payment, and pay for, pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
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 this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described or conditions set forth in any of paragraphs (a) or (b) of Annex III hereto Article 6 shall have occurred and be continuing existing (unless waived by Parent or Subas provided in Article 6), Sub shallas promptly as practicable after the date hereof (but in no event later than the twentieth business day after the public announcement of this Agreement), and Parent Acquisition shall cause Sub to, 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"Exchange Act"), the “Exchange Act”)) Offer. The Offer will be made pursuant to the Offer within ten Documents (10as defined below) business days following containing the date hereofterms and conditions set forth in this Agreement. The obligations of Sub to Acquisition shall accept for payment payment, purchase and to pay for any Shares all Shares, Convertible Preferred Stock and Warrants which have been validly tendered and not withdrawn prior pursuant to the Offer at the earliest time following expiration of the Offer (as it may be extended that all conditions to the Offer set forth in accordance with requirements Article 6 shall have been satisfied or waived by Acquisition. The obligation of this Section 1.1(a)) Acquisition to accept for payment, purchase and pay for Shares, Convertible Preferred Stock and Warrants tendered pursuant to the Offer shall be subject only to the condition that 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 (the "Minimum Condition") and the satisfaction of the other conditions set forth in Annex III heretoArticle 6. 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 Acquisition expressly reserves the right to waive any of such conditionscondition (other than the Minimum Condition), to increase the price per Share payable in the Offer Price and or to make any other changes in the terms and conditions of the Offer (provided that, unless previously approved by the Company in writing, no change may be made which decreases the Per Share Amount, which reduces the number of Shares to be purchased in the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change which changes the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought to be paid in the Offer, waive or change which imposes conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto Article 6 or otherwise modify which amends or amend changes any other term or condition of the Offer, Offer in each case in any a manner adverse to the holders of Shares). In the Company Common Stock, impose any conditions case of shares of Convertible Preferred Stock tendered pursuant to the Offer that Offer, Acquisition shall pay the Per Share Amount multiplied by the number of Shares into which such Shares of Convertible Preferred Stock are not set forth on Annex III heretothen convertible. In the case of Warrants tendered pursuant to the Offer, or extend Acquisition shall purchase such Warrants for a purchase price equal to the Offer beyond a date that is twenty-one (21) business days after commencement 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 Offer or terms and subject to the last extension (as permitted in accordance with this Section 1.1), if any, conditions of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the . The Company (such consent to be authorized agrees that no Shares held by the Company Board or any of Directors or a duly authorized committee thereof). Notwithstanding its subsidiaries will be tendered in the foregoing, but subject Offer.
(b) Subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1terms and conditions thereof, Sub shallthe Offer shall expire at midnight, upon New York City time, on January 3, 2001 (the written request of the Company at least one business day before the then-scheduled expiration date"Initial Expiration Date"); provided, and mayhowever, without the consent of the CompanyBoard, Parent may cause Acquisition to (i) from time to time extend the Offer beyond Offer, if at the initial expiration date if, at any scheduled (or extended) expiration Initial Expiration Date of the Offer, any of the conditions set forth in Annex III hereto to the Offer necessary to consummate the Offer have not been satisfied or waived (other than the Minimum Condition, to which this clause (i) shall does not be apply), until such time as such conditions are satisfied or waived for up to two periods of not more than ten (10) business days per extension, waived; (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 applicable rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (“the "SEC”), ") or the staff thereof; (iii) if the Minimum Condition is not satisfied, applicable extend the Offer; provided that all extensions pursuant to clauses (i) through (iii) hereof shall not exceed twenty (20) business days, and (iv) if the Minimum Condition is satisfied but the number of Shares validly tendered and not withdrawn represents less than ninety percent (90%) of the then outstanding Shares (giving effect to the Offer. In addition to conversion of all then outstanding shares of Convertible Preferred Stock and the foregoing exercise of all then outstanding Warrants), after consummation of the Offer and excluded from any such limitationspayment for all validly tendered shares, Sub also may provide a “commence one subsequent offering period” in accordance with offer for the Shares provided that Acquisition shall meet the requirements of Rule 14d-11 under the Exchange ActAct 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, if applicable), any of the conditions to the Offer including the Minimum Condition shall not have been waived or satisfied, until (taking into account all such extensions) February 28, 2001, provided, however, that if the Minimum Condition is the only condition to the Offer not then satisfied, Acquisition shall not be required to extend the Offer for more than twenty (20) business days.
(bc) On As soon as practicable after the date of commencement of the Offer, Parent and Sub Acquisition shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendmentsOffer, supplements which shall include an offer to purchase and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of transmittal letter of transmittal and summary advertisement (collectively, together with any amendments and thereof or supplements thereto, collectively 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 shall comply in all material respects with all applicable the provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, on the one hand, federal securities laws and the Companyrules and regulations of the SEC. Parent, on Acquisition and the other hand, agree Company each 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 or as otherwise required by Law. Parent respect, and Sub Acquisition further agree 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 Lawfederal securities laws and the rules and regulations of the SEC. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is Offer Documents prior to their being filed with the SEC, and . Parent and Sub shall give due consideration Acquisition agree to all reasonable additions, deletions or modifications thereto suggested by provide to the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company with counsel any comments, whether written comments or oral, that other communications which Parent, Sub Acquisition or their counsel may receive receives from time to time prior to the expiration or termination staff of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretothereof.
(c) Parent shall provide or cause to be 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 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 (Ac Acquisition Subsidiary Inc), Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Chesapeake Biological Laboratories Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and So long as none of the events described set forth in any of paragraphs clauses (a) or through (bh) of Annex III I hereto shall have occurred and be continuing (unless waived by Parent or Sub)exist, Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as promptly as practicable after the date hereof, but in any event not later than May 4, 1998, the Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to such Shares, net to the seller in cash. The initial expiration date for the Offer shall be the 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 Exchange Act (the "Expiration Date"). As promptly as practicable, the Purchaser shall 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 rules documents therein pursuant to which the Offer will be made, and regulations promulgated thereunderwith any supplements or amendments thereto, the “Exchange Act”"Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer within ten to Purchase (10the "Offer to Purchase") business days following which shall be mailed to the date hereofholders of Shares with respect to the Offer. The obligations obligation of Sub Parent and the Purchaser to accept for payment and to or pay for any Shares tendered pursuant to the Offer will be subject only to there being validly tendered and not withdrawn prior to the expiration of the Offer Offer, that number of Shares which represents at least 66-2/3% of the Shares outstanding on a fully diluted basis (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only 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 III heretoI hereto ("fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding employee stock options). Subject to Without 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the Offer; providedCompany, however, that Sub the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, (ii) decrease the number of Shares sought to be purchased in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or iii) amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of any Shares; provided, however, that if on the Company Common Stockinitial scheduled Expiration Date, impose any conditions the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act (as hereinafter defined) to have expired or been terminated, the Offer that are not set forth on Annex III heretoPurchaser shall, or and Parent shall cause the Purchaser to, extend the Offer beyond a expiration date that is twenty-one (21) from time to time until two 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 waiting period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange HSR Act.
(b) On Subject to the date of commencement terms of the OfferOffer and this Agreement and the satisfaction or waiver of all the conditions of the Offer set forth in Annex I hereto as of the Expiration Date, Parent the Purchaser will accept for payment and Sub shall file with the SEC, pay for all Shares validly tendered and not withdrawn pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer as soon as practicable after the Expiration Date.
(together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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). c) The Offer Documents will comply in all material respects with all applicable the provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC applicable federal securities laws 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be date filed with the SEC and disseminated on the date first published, sent or given to holders the Company's shareholders, shall not contain any untrue statement of Sharesa 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 each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination light of the Offercircumstances under which they were made, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.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 this Agreement shall not have been terminated in accordance with Section 8.1 and none of Article 7, as promptly as practicable after the events described date hereof (but in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subno event later than January 13, 2020), Merger Sub shall, 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 (together with the rules and regulations promulgated thereunderAct, the “Exchange Act”)Offer to purchase for cash any and all (i) the Offer within ten Shares (10) business days following the date hereof. The obligations of Sub other than Shares to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended cancelled in accordance with requirements of this Section 1.1(a2.1(b)) shall be subject only to at the conditions set forth in Annex III heretoShare Offer Price and (ii) Preferred Shares at the Preferred Share Offer Price. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and accept for payment payment, purchase and pay for all Shares and Preferred Shares, as applicable, validly tendered and not properly withdrawn promptly following pursuant to the acceptance Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date that number of Shares and Preferred Shares that, together with the number of Shares and Preferred Shares (if any) then owned by the Parent, equals at least a majority of the voting power represented by the Shares and Preferred Shares (voting on an as-converted basis in accordance with the Certificate of Designations) that are then issued and outstanding (the “Minimum Condition”); and (b) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I.
(b) On or prior to the date that Merger Sub becomes obligated to pay for Shares and Preferred Shares pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Shares and Preferred Shares, as applicable, that Merger Sub shall become obligated to accept for payment and purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I, Merger Sub shall accept for payment (the time of such acceptance, the “Acceptance Time”) and pay for all Shares and Preferred Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable following the Expiration Date, and, in any event, no more than two (2) Business Days after the Expiration Date. The Offer Price payable in respect of each Share and Preferred Share, as applicable, 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, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains describes the terms set forth and conditions of the Offer in accordance with applicable Law and this Agreement and Agreement, including the conditions and requirements set forth in Annex III hereto. I. To the extent permitted by applicable Law, Parent and Merger Sub expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; provided, however, that except with the prior written approval of the Company, Merger Sub shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, (iii) reduce the maximum number of Shares or Preferred Shares sought to be purchased in the Offer, (iv) amend, modify or waive or change the Minimum Condition Condition, (as defined v) amend any of the other conditions to the Offer set forth in Annex III I in a manner adverse to the holders of Shares or Preferred Shares, (vi) impose conditions to the Offer that are in addition to the conditions to the Offer set forth in Annex I hereto, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition terms of the Offer, Offer in each case a manner adverse in any manner adverse material respect to the holders of Shares or Preferred Shares.
(d) Unless extended in accordance with the Company Common Stockterms of this Agreement, impose any conditions to the Offer that are not set forth shall expire at one minute after 11:59 p.m. (New York City time) on Annex III hereto, or extend the Offer beyond a date that is twenty-one twenty (2120) business days after Business Days following the commencement of the Offer or (determined using Rule 14d-1(g)(3) promulgated under the last extension Exchange Act) (as permitted such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Section 1.1)Agreement, if anythe date and time to which the Offer has been so extended (the Initial Expiration Date, of or such later date and time to which the OfferInitial Expiration Date has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) except as If on any then scheduled Expiration Date, any of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth belowin Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each, or such longer period as may be agreed between Merger Sub and the Company, in each case order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Outside Date. The “Outside Date” shall be June 20, 2020. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date 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 foregoingCompany, but subject to the parties’ respective rights to terminate except if this Agreement has been terminated in accordance with Section 8.1Article 7. If this Agreement is terminated in accordance with Article 7, Merger Sub shallshall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours following such termination), upon irrevocably and unconditionally terminate the written request of Offer and shall not acquire any Shares or Preferred Shares pursuant thereto. If the Company at least one business day before Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the then-scheduled expiration dateAcceptance Time, Merger Sub shall (and the Parent shall cause Merger Sub to) promptly return, and mayshall cause any depositary acting on behalf of Merger Sub to return, without in accordance with applicable Law, all tendered Shares and Preferred Shares to the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) registered holders thereof and Merger Sub shall not be satisfied (and Parent shall cause Merger Sub not to) accept any Shares or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable Preferred Shares pursuant to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(bg) On As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (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 letter of transmittal and a form of summary advertisement (collectively, together with any amendments amendments, supplements and supplements 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 provisions of the Exchange Act. Parent and Merger 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 and Preferred Shares, in each case as and to the extent required by applicable Lawfederal securities Laws, including the Exchange Act. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly notify the other party and 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 or as otherwise required by applicable Law. Parent , and Merger Sub further agree to take all steps necessary agrees to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares and Preferred Shares, in each case case, as and to the extent required by applicable Lawthe Exchange Act. The Except following a Change of Board Recommendation, the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Merger Sub shall give due consideration to all reasonable any additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, except following a Change of Board Recommendation, Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall provide them an oral summary of any oral comments, that Parent, Parent and Merger Sub or their its counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any such responses to such comments or communications, and Parent and Merger Sub shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect theretocounsel.
(c) Parent shall provide or cause to be 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 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 (Care.com Inc), Merger Agreement (Iac/Interactivecorp), Merger Agreement (Iac/Interactivecorp)
The Offer. (a) Provided that no event shall have occurred that would give rise to a right to terminate this Agreement pursuant to Article 8, Buyer shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)▇▇▇▇ ▇▇▇) the Offer within ten as promptly as reasonably practicable after the date of this Agreement but in no event later than the tenth (1010th) business days Business Day following the date hereofof this Agreement. The obligations of Sub Buyer to accept for payment payment, and to pay for for, any Shares validly tendered and not properly withdrawn prior pursuant 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 the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex III heretoI (the “Offer Conditions”). Subject The date on which Buyer commences the Offer is referred to as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the prior satisfaction or waiver (to the extent such waiver is not prohibited by Parent or Sub applicable Law) of conditions set forth in Annex III heretothe Offer Conditions, Sub shall, Buyer shall (and Parent shall cause Sub Buyer to), consummate at or as promptly as practicable following the Offer Expiration Time (but in accordance with its terms and any event within two (2) Business Days thereafter), accept for payment and (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 promptly following the acceptance of Shares for payment pursuant to the OfferOffer 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 made by means paid, net of an offer any applicable Tax withholding with respect to purchase (the “Offer Consideration pursuant to Purchase”) that contains Section 2.09, to the seller of such Share in cash, without interest, on the terms set forth in this Agreement and subject to the conditions set forth in Annex III hereto. Parent of this Agreement.
(c) Buyer expressly reserves the right to waive at any time to, in its sole discretion, waive, in whole or in part, any of such conditions, to increase the Offer Price Conditions and to make any other changes change in the terms of of, or conditions to, the Offer; provided, howeverthat, that Sub without the prior written consent of the Company, Buyer shall not, not (and Parent shall cause Sub Buyer not to, ):
(i) waive or change the Minimum Condition (except to the extent contemplated under paragraph (A) of Annex I);
(ii) decrease the Offer Price or Consideration;
(iii) change the form of consideration to be paid in which any component of the Offer Price is payable, Offer;
(iv) decrease the number of Shares sought in the Offer, waive ;
(v) extend or otherwise change the Minimum Condition Expiration Time, except as otherwise provided in this Agreement; or
(as defined in Annex III hereto)vi) impose additional Offer Conditions or otherwise amend, modify or amend supplement any of the conditions set forth in Annex III hereto Offer Conditions or otherwise modify or amend any other term or condition terms of the Offer, Offer in each case in any a manner adverse to the holders of the Company Common Stock, impose any conditions to the Shares.
(d) The Offer that are not set forth on Annex III heretoshall initially expire at 9:00 a.m. (New York City time), or extend at such other time as the Offer beyond a Parties may mutually agree, on the date that is the later of (i) twenty-one (21) business days after Business Days (calculated in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) following the commencement of the Offer or and (ii) six (6) Business Days after the last extension date of the EGM (as permitted in accordance with this Section 1.1), if any, such initial expiration date and time of the Offer, whichever is later (the “Initial Expiration DateTime”) except as set forth belowor, in each case without if the prior written consent of the Company (such consent Offer has been extended pursuant to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement and in accordance with Section 8.12.01(e), Sub shallthe date and time to which the Offer has been so extended (the Initial Expiration Time, upon or such later expiration date and time to which the written request 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 applicable, extend the Offer from time to time as follows:
(i) Buyer shall (and Parent shall cause Buyer to) extend the Offer for the minimum period as required by any rule, regulation, interpretation or position of the Company SEC, the staff thereof or the NYSE applicable to the Offer;
(ii) if, at least one business day before the then-scheduled expiration dateExpiration Time, and may, without the consent any of the CompanyOffer 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 (iand Parent shall cause Buyer to) extend the Offer beyond 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 initial expiration date iflast 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 (or extended) expiration of Expiration Time, the Offer, any of the conditions Offer Condition set forth in paragraph (B) or paragraph (C) of Annex III hereto I is not reasonably likely to be satisfied within such ten (other 10) Business Day extension period, then Buyer may extend the Offer on such occasion for periods of up to twenty (20) Business Days; provided further, that (x) Buyer shall not be 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 satisfied or waived for required to extend the Offer on more than two (2) occasions in consecutive periods of up to two periods 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 more less than ten (10) business days per extension, Business Days (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” calculated in accordance with Rule 14d-11 14d-1(g)(3) promulgated under the Exchange 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”).
(bg) On The Offer may not be terminated prior to the date of commencement of 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 8.01. If this Agreement is validly terminated pursuant to Section 8.01, 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 Buyer prior to the acceptance for payment and payment for Shares tendered pursuant to the Offer, Buyer shall (and Parent shall cause Buyer to) promptly return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof. Nothing in this Section 2.01(g) shall affect any termination rights under Article 8.
(h) As soon as practicable on the Offer Commencement Date, Parent and Sub Buyer shall (i) file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”). The Schedule TO , which shall include, as exhibits, the Offer contain or incorporate by reference an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement other appropriate ancillary offer documents required to be included therein (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments or supplements thereto and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) 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 Shares to the extent required by applicable United States federal securities Laws and any other applicable Law. The Company shall promptly furnish to Parent and SubBuyer all information concerning the Company required by the 1934 Act and applicable Law, or as reasonably requested by Parent, to be set forth in the Offer Documents. Each of Parent and Buyer, on the one hand, and the Company, on the other hand, agree 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 or as otherwise required by Lawrespect. Parent and Sub further agree to take all steps necessary 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 and any other applicable Law. 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 amendment thereto before it such document is filed with the SEC, and Parent and Sub Buyer shall give due consideration to consider in good faith including in such document (and any amendments thereto) all reasonable additions, deletions or modifications thereto suggested comments reasonably proposed by the Company and its legal counsel. In addition, Parent and Sub agree to Buyer shall provide the Company and its counsel with (A) any commentscomments or other communications, whether written or oral, that Parent, Sub Parent and Buyer or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, those comments or other communications and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given (B) a reasonable opportunity to review any responses participate in the response of Parent and Buyer to such those comments or communications, and to provide comments on that response (and Parent and Sub Buyer shall give due consideration to consider in good faith including all reasonable views and comments of reasonably proposed by the Company and its legal counsel), including by participating with Parent and Buyer or their counsel in any discussions or meetings with respect thereto.
(c) Parent shall provide the SEC or cause to be 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 other Governmental Authorities to the Offer and that Sub extent such participation is obligated to accept for payment pursuant to not prohibited by the Offer and permitted to accept for payment under applicable LawSEC or 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 this Agreement shall not have been terminated in accordance with Section 8.1 7.1 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III A hereto shall have occurred and be continuing (unless and shall not have been waived by Parent Purchaser or Merger Sub), Merger Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten as promptly as reasonably practicable after the date hereof, but in no event later than five (105) business days following from the date hereofof this Agreement, and the Offer shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Exchange Act) from commencement of the Offer (the “Initial Expiration Date”). The obligations obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered 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) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Common Stock that represents a majority of all outstanding shares of Common Stock that are not Beneficially Owned by Purchaser, Merger Sub or any Purchaser Affiliate (the “Minimum Condition”); and (ii) the other conditions set forth in Annex III A hereto. 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 Parent Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex III A hereto, Merger 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 Agreement, the Minimum Condition and the other conditions set forth in Annex III A hereto. Parent Purchaser expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Merger Sub shall not, and Parent Purchaser shall cause Merger Sub not to, decrease the Offer Price or Price, change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, waive extend the Offer beyond the Initial Expiration Date except as set forth below, purchase any Shares pursuant to the Offer or change otherwise unless the shares purchased equal or exceed that number of shares of Common Stock that satisfy the Minimum Condition (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, in each case Offer in any manner adverse to the holders of the Company 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 belowShares, 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, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Merger 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, prior to the termination of this Agreement (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, Offer any of the conditions set forth in Annex III hereto (other than the Minimum Condition) to Merger Sub’s obligation to accept Shares for payment shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to timeincluding without limitation the Minimum Condition), extend the Offer if at beyond the scheduled or extended Expiration Date the Minimum Condition is not then applicable expiration date thereof for a time period reasonably necessary to permit such condition to be satisfied, for up to two periods of ten (10) business days per extension or (iiiii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer or (iii) if, at any scheduled expiration of the Offer. In addition , the number of shares of Common Stock that shall have been validly tendered and not withdrawn pursuant to the foregoing and excluded from any such limitationsOffer satisfies the Minimum Condition but represents less than 90% of the shares of Common Stock outstanding, extend the Offer (one or more times) for an aggregate additional period of not more than 20 business days. Merger Sub also may provide a “subsequent offering period” also, without the consent of the Company but only after the Minimum Condition is satisfied, extend the Offer in accordance with Rule 14d-11 under the Exchange Act. 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 Company.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”)) with respect to the Offer. The Schedule TO shall include, as exhibits, contain or incorporate by reference an offer to purchase (the “Offer to Purchase Purchase”) and a form forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any all amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Purchaser 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 provisions of the Exchange Act. Parent and Merger Sub agree to take all commercially reasonable steps necessary to shall cause the Offer Documents to be filed with the SEC and, subject disseminated to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case the Shares as and to the extent required by applicable Lawfederal securities laws. Parent Purchaser and Merger Sub, on the one hand, and the Company, on the other hand, 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 false or misleading in any material respect or as otherwise required by Law. Parent respect, and Merger Sub further agree to take all steps necessary to will 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent Purchaser and Merger Sub agree to provide the Company and its counsel with any comments, whether written or oral, that Parent, Purchaser or Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, comments and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub the Company and their its counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be provided to Purchaser and Merger Sub promptly following will file with the expiration Commissioner of Commerce of the Offer or State of Minnesota and deliver to the Company 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 registration statement relating to the Offer and that Sub is obligated required to accept for payment be filed pursuant to Chapter 80B of the Offer Minnesota Statutes and permitted will disseminate to accept for payment under applicable Lawthe shareholders of the Company the information specified in Section 80B.03 of 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 this Agreement shall not have --------- been terminated pursuant to Article IX, as promptly as practicable (but in accordance with Section 8.1 and none any ---------- event not later than five business days after the public announcement of the events described in any execution and delivery of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subthis Agreement), Sub shall, and Parent Richfood shall cause Sub to, Merger Subsidiary to 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”) an offer to purchase (the "Offer") all outstanding shares of Dart Common Stock at a price of $160.00 per share, net to the seller in cash (such amount, or any greater amount per Share paid pursuant to the Offer, being hereinafter referred to as the "Offer Consideration")) the Offer within ten (10) business days following the date hereof. The obligations obligation of Sub Richfood and Merger Subsidiary to commence the Offer, consummate the Offer, accept for payment and to pay for any shares of Dart Common Stock validly tendered in the Offer and not withdrawn shall be subject only to 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 (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. 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 initial expiration date of the Offer shall will be made by means of an offer to purchase midnight on the twentieth business day after the Offer is commenced.
(the “Offer to Purchase”b) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent Merger Subsidiary expressly reserves the right to waive any of such conditions, to increase the price per share payable in the Offer Price 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 Sub Merger Subsidiary shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, Consideration or decrease the number of Shares sought in pursuant to the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the ii) impose additional conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of to the Offer, in each case (iii) 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 the holders of the Company shares of Dart Common Stock; provided, impose any conditions to the Offer that are not set forth on Annex III heretohowever, 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)that, if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below-------- ------- above, 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, but subject Merger Subsidiary may waive any condition to the parties’ respective rights to terminate this Agreement Offer 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto its sole discretion (other than the Minimum Condition) shall , as defined in Annex I, which ------- Merger Subsidiary may not waive); and provided further, that the Offer may be satisfied or waived -------- ------- 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 two periods of not more than ten (10) business days per 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, (ii) from time Merger Subsidiary irrevocably waives the conditions to time, extend the Offer if at set forth in clauses (b), (c), (f), (g)(1) and (h) of Annex I. Assuming the scheduled prior satisfaction 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 or interpretation waiver of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable conditions to the ------- Offer. In addition to the foregoing , Merger Subsidiary shall accept for payment, and excluded from any such limitationspay for, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement terms of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form shares of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Dart Common Stock validly tendered and not withdrawn 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, or any subsequent extension thereof, all conditions to the Offer have not been satisfied or waived; provided, however, -------- ------- that Sub is Richfood and 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 failure of any such condition being satisfied.
(c) Richfood shall provide or cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares of Dart Common Stock that Merger Subsidiary becomes obligated to accept for payment purchase pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
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 (i) this Agreement shall not have been terminated in accordance with Section 8.1 10 and (ii) none of the events described set forth in any of paragraphs (a) or (b) of Annex III I hereto shall have occurred and or be continuing (unless waived by Parent or Sub)existing, Merger Sub shall, as promptly as practicable (and Parent shall cause Sub toin any event not later than eight (8) Business Days after the date of this Agreement), 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”)) the Offer within ten for all of the Shares, at the Offer Price, without interest.
(10b) business days following the date hereof. The obligations obligation of Parent and Merger Sub to accept for payment and to pay for any Shares validly tendered 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 (including the Shares tendered under the Shareholder Agreements) which, together with the Shares then owned by Parent and Merger Sub, represents at least ninety percent (90%) of the total number of Fully Diluted Shares (as defined below) (the “Minimum Condition”), subject to such waivers of, and changes to, the Minimum Condition as may be required pursuant to Section 1.1(e), and (ii) the other conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretoI hereto (collectively, 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 PurchaseConditions”) that contains ). For purposes of this Agreement, “Fully Diluted Shares” shall mean the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the total number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any outstanding shares of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose assuming (A) exercise on a cash basis of all outstanding Company Options, whether vested or unvested (excluding for this purpose all Company Options, whether vested or unvested, held by holders who have entered into binding written agreements with the Company agreeing to refrain from exercising all or any conditions to portion of such Company Options during any period that the Offer that are not set forth on Annex III hereto, or extend remains pending and all Company Options with an exercise price greater than the Offer beyond a date that is twenty-one (21) business days after commencement Price, irrespective of whether the Offer or the last extension (as permitted in accordance with this Section 1.1holders thereof have entered into such binding written agreements), if any, and (B) exercise or conversion of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent 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 (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Lawissue.
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 7.1 and none of the events described no event set forth in any of paragraphs (a) or (b) of Annex III A hereto shall have occurred and be continuing continuing, as promptly as practicable (unless waived by Parent or Subbut in no event later than ten (10) business days after the public announcement of the execution hereof), Sub the Purchaser shall, and Parent shall cause Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules "Exchange Act") ) an offer (the "Offer") to purchase for cash all of the Shares at a price of $0.57 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "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 regulations promulgated thereunderat the commencement of, the “Exchange Act”)) the Offer within ten (10) business days following the date hereofOffer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The obligations Company shall not tender Shares held by it or by any of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior its subsidiaries pursuant to the expiration of Offer. The Purchaser shall, and Parent shall cause the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be Purchaser to, on the terms and subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of the conditions set forth in Annex III heretoto the Offer, 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 as soon as it is legally permitted to the Offer. do so under applicable law.
(b) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains containing the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves A hereto and providing for an initial expiration date (the right "Expiration Date", which term shall also indicate any later date to waive any of such conditions, to increase which the Offer Price and to make any other changes is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the terms Exchange Act) from the date of commencement of the Offer; provided, however, that Sub . The Purchaser shall not, and Parent shall cause Sub the Purchaser not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions to the Offer set forth in Annex III hereto A or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not in addition to those set forth on in Annex III heretoA, 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)Company. Notwithstanding the foregoing, 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 The Purchaser may, without the consent of the Company, (iA) extend the Offer beyond for the initial expiration date ifshortest time periods which it reasonably believes are necessary, at 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 scheduled (or extended) expiration of condition to the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall Offer is not be 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 two periods ten (10) business days, or (2) provide a subsequent offering period of not more than up to ten (10) business days per extensionin accordance with Rule 14d-11 of the Exchange Act, (ii) from time in each case notwithstanding that all the conditions to time, extend the Offer if at were satisfied as of the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per date such extension or (iii) extend subsequent offering period, as the case may be, is announced. In addition, the Offer for any period Price may be increased and the Offer may be extended to the extent required by any rulelaw in connection with such increase, regulation or interpretation 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. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”"). The Schedule TO shall include, as exhibits, contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelythe Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “"Offer Documents”). 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 shall comply in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and Sub agree to Purchaser shall further take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to 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 or as otherwise required by Law. Parent prior to the Expiration Date and Sub the Purchaser further agree to 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on upon the Schedule TO Offer Documents (and shall provide any amendment thereto before it is filed comments thereon as soon as practicable) prior to the filing thereof with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent shall, and Sub agree to shall cause the Purchaser to, provide the Company and its counsel in writing with any comments, whether written or oral, comments that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, comments and with copies of any written or oral responses thereto, and the Company shall have the right to consult with telephonic notification of any verbal responses by Parent, Sub and Purchaser or their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocounsel.
(cd) Parent shall provide or cause to be provided to Sub promptly following the expiration Purchaser all 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 purchase any Shares that have been validly tendered and not withdrawn Purchaser becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
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 this Agreement shall not have been terminated in accordance with Section 8.1 Article IX and none of the events described or conditions set forth in any of paragraphs (a) or (b) of Annex III hereto A shall have occurred and be continuing (unless waived by existing, then, not later than the first business day after execution of this Agreement, the Parent or Sub)shall issue a public announcement of the execution of this Agreement, Sub and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, and Parent shall cause Sub tosubject to the provisions of this Agreement, commence a tender offer (within the meaning "Offer") for all of Rule 14d-2 under the Securities Exchange Act outstanding shares of 1934Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (together with the rules "Company Rights Agreement"), between the Company and regulations promulgated thereunderFirst Interstate Bank of California, as Rights Agent (collectively, the “Exchange Act”)"Shares") at a price of $10.50 per Share, net to the Offer within ten (10) business days following the date hereofseller in cash. The obligations of Sub to Purchaser shall accept for payment and to pay for any 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 (as it may be extended in accordance with requirements the "Minimum Condition"). Solely for purposes of this Section 1.1(a)) shall be subject only to determining whether the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver Minimum Condition has been satisfied, any Shares owned by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent Purchaser shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares be deemed to have been validly 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 Purchaser expressly reserves the right to waive any of such conditions, to increase the price per Share payable in the Offer Price and or to make any other changes in the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that Sub shall notthat, and Parent shall cause Sub not tounless previously approved by the Company in writing, decrease no change may be made which decreases the Offer Price or change price per Share payable in the Offer, which changes the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought to be paid in the Offer, waive or change 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 majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as defined hereinafter set forth in Annex III heretothis Subsection 1.01(a), modify extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or amend which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, A) in each case in any a manner that is materially adverse to the holders of the Company 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)Shares. Notwithstanding the foregoing, 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 Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any the scheduled (or extended) 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 III hereto A 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 (other than including any action or inaction by the Minimum ConditionPurchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) shall not or may be satisfied waived by the Parent or waived for up to two periods of not more than ten (10) business days per extensionthe Purchaser, (ii) in whole or in part at any time and from time to time, extend in its sole discretion. The failure by the Offer if Parent or the Purchaser at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up any time to two periods of ten (10) business days per extension or (iii) extend the Offer for exercise any period required by any rule, regulation or interpretation of the United States 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 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 Parent and the Purchaser shall file with the Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendmentsOffer, supplements which shall contain an offer to purchase and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of related letter of transmittal and summary advertisement (collectivelysuch Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements 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 shall comply as to form in all material respects with all applicable provisions the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act. Parent "), and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be rules and regulations promulgated thereunder and, on the date filed with the SEC andand on the date first published, subject sent or given to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, 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 each case as and order to make the extent required statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by applicable Lawthe Parent or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Parent and SubEach of the Parent, on the one hand, Purchaser and the Company, on the other hand, agree Company 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 or as otherwise required by Law. respect, and each of the Parent and Sub the Purchaser further agree 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 LawFederal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect to the Offer Documents promptly after the receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO Offer Documents and any amendment all amendments and supplements thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from their filing with the SEC or its staff with respect dissemination to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments stockholders of the Company and its legal counsel with respect theretoCompany.
(c) Parent shall provide or cause to be 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 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 (Hanna M a Co/De), Merger Agreement (Cimco Inc /De/), Merger Agreement (Cimco Inc /De/)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1 and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events described conditions set forth in any Annex I hereto, as promptly as reasonably practicable after the public announcement of paragraphs the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub Acquisition to, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 19341934 (the "Exchange Act")), as amended an offer (together with the rules "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and regulations promulgated thereundercollectively, the “Exchange Act”"Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")) the Offer within ten (10) business days following the date hereof. The obligations obligation of Sub Acquisition to accept for payment and to pay for any Shares validly tendered 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 at least two-thirds of the Shares on a fully- diluted basis, together with 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 any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex III I hereto. 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 Acquisition expressly reserves the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub shall not, (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and Parent shall cause Sub not to, decrease the Offer Price or (ii) no change may be made that changes the form of consideration in which any component of to be paid, decreases the Offer Price is payable, decrease price per Share or the number of Shares sought in the Offer, waive or change imposes conditions to the Minimum Condition (as defined Offer in addition to those set forth in Annex III heretoI, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), modify below) or amend makes any other 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 III hereto I shall not have been satisfied or otherwise modify waived at the scheduled or amend any other term or condition extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in each case material compliance with all of its covenants in any manner adverse this Agreement, subject to the holders cure provisions of the Company Common Stock, impose any conditions to the Offer that are not set forth on paragraph (b)(ii) of 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). I. Notwithstanding the foregoing, 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 Acquisition may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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, rule or regulation or interpretation of the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, ") applicable to the Offer. In addition Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the foregoing and excluded from any such limitationsOffer as of the scheduled or extended expiration date, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under the Exchange Actclause (i) of this sentence.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub Acquisition shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”)Offer. The Schedule TO shall include, contain as exhibitsan exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement all amendments or supplements thereto (collectively, which together with any amendments and supplements thereto, constitute 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, on the one hand, Act and the Companyrules and regulations thereunder and other Applicable Laws. Each of Parent, on Acquisition and the other hand, agree Company 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 or as otherwise required by Law. respect, and Parent and Sub 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed Offer Documents prior to the filing thereof with the SEC, and . Parent and Sub shall give due consideration Acquisition agree to all reasonable additions, deletions or modifications thereto suggested by provide in writing the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company counsel with any comments, whether written or oral, that comments Parent, Sub Acquisition or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 (Policy Management Systems Corp), Merger Agreement (Computer Sciences Corp), Merger Agreement (Computer Sciences Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 9.01 and that none of the events described or conditions set forth in any of paragraphs (a) or (b) of Annex III hereto A shall have occurred and be continuing (unless existing and shall not have been waived by Parent or Sub(the conditions set forth in Annex A, the “Tender Offer Conditions”), Sub shall, and Parent Purchaser shall cause Sub to, 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 promulgated thereunder, the “Exchange Act”)) the Offer as promptly as practicable and in any event within ten (10) business days following after the date hereof. The obligations obligation of Sub Purchaser to accept for payment Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for any Shares validly each such tendered and not subsequently withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) Share shall be subject only to the Tender Offer Conditions. Purchaser expressly reserves the right to waive any such condition, to increase the Per Share Amount payable in the Offer, and to make any other changes to the terms and conditions of the Offer; provided, however, that without the prior written consent of the Company (i) the 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, (C) reduces the maximum number of Shares to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto, or (E) amends the conditions set forth in Annex III hereto. A hereto in any manner materially adverse to the holders of Shares.
(b) Subject to the prior terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (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) if the Minimum Condition is not satisfied on or before the Expiration Date; (ii) if any of the conditions of the Offer set forth in clause (ii) of the second paragraph of the Tender Offer 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 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 Offer requires such extension. Purchaser shall extend the Offer for up to five (5) business days after the satisfaction or waiver by Parent or Sub of the conditions set forth in Annex III heretoclauses (i), Sub (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 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 not withdrawn in the Offer, together with any Shares then owned by Parent is less than 90% of the outstanding Shares on a Fully Diluted Basis, Purchaser may, in its sole discretion, and subject to the first sentence of subsection (c), commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) 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 Parent shall cause Sub it to, consummate promptly after the Offer in accordance with its terms and Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax) all Shares that have been validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If Purchaser shall commence a subsequent offering period in connection with the Offer, Purchaser shall accept for payment and pay for (after giving effect to any required withholding Tax) all additional Shares validly tendered during such subsequent offering period.
(d) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser 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. The Offer Schedule TO shall be made contain or shall incorporate by means of reference 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms forms of the Offer; provided, however, that Sub shall not, related letter of transmittal and Parent shall cause Sub not to, decrease the Offer Price or change the form forms of consideration in which notice of guaranteed delivery and any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 related summary advertisement (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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”). Subject to Section 5.2Each of Parent, Purchaser and the Company hereby consents agrees 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree 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 or as otherwise required by Law. respect, and Parent and Sub 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 Law. The Company shall be given 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 a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is Offer Documents prior to such documents being filed with the SEC, and SEC or disseminated to holders of Shares. Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by provide the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company counsel with any comments, whether written or oral, comments that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff the SEC Staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, comments and any written or oral responses thereto, and shall provide the Company 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. The Company and its legal counsel shall be given with a reasonable opportunity to review any responses participate in the response of Parent or Purchaser to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocomments.
(c) Parent shall provide or cause to be 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 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 (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 give rise to a right to terminate this Agreement pursuant to Article 8, Buyer shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)▇▇▇▇ ▇▇▇) the Offer within ten as promptly as reasonably practicable after the date of this Agreement but in no event later than the fifteenth (1015th) business days Business Day following the date hereofof this Agreement. The obligations of Sub Buyer to accept for payment payment, and to pay for for, any Shares validly tendered and not withdrawn prior pursuant 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 the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex III hereto. 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 I (the “Offer Conditions”). The date on which Buyer commences the Offer is referred to Purchaseas 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”) that contains and, at or as promptly as practicable following the terms Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in this Agreement 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 the conditions set forth in Annex III hereto. Parent expressly reserves the right not properly withdrawn pursuant to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms as of the OfferAcceptance Time (the “Closing,”); provided, however, that Sub 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 Parties; provided, further, that Buyer shall confirm in writing to the Company, 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, and Parent shall cause Sub not to, :
(i) waive or change the Minimum Condition (except to the extent permitted under paragraph (A) of Annex I);
(ii) decrease the Offer Price or Consideration;
(iii) change the form of consideration to be paid in which any component of the Offer Price is payable, Offer;
(iv) decrease the number of Shares sought in the Offer, waive ;
(v) extend or otherwise change the Minimum Condition Expiration Time, except as otherwise provided in this Agreement; or
(as defined in Annex III hereto)vi) impose additional Offer Conditions or otherwise amend, modify or amend supplement any of the conditions set forth in Annex III hereto Offer Conditions or otherwise modify or amend any other term or condition terms of the Offer, Offer in each case in any a manner adverse to the holders of the Company Common Stock, impose any conditions to the Shares.
(d) The Offer that are not set forth on Annex III heretoshall initially expire at 9:00 a.m. (New York City time), or extend at such other time as the Offer beyond a Parties may mutually agree, on the date that is the later of (i) twenty-one (21) business days after Business Days (calculated in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) following the commencement of the Offer or and (ii) such date that is six (6) Business Days after the last extension date of the EGM (as permitted in accordance with this Section 1.1), if any, such initial expiration date and time of the Offer, whichever is later (the “Initial Expiration DateTime”) except as set forth belowor, in each case without if the prior written consent of the Company (such consent Offer has been extended pursuant to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement and in accordance with Section 8.12.01(e), Sub 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”).
(e) Subject to Article 8, Buyer may or 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to timeas applicable, extend the Offer if at from time to time as follows:
(i) for 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 minimum period as required by any rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), the staff thereof or the staff thereof, NASDAQ Global Select Market (the “NASDAQ”) applicable to the Offer. In addition ; or
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the foregoing extent such waiver is not prohibited under this Agreement and excluded from 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 such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under then-scheduled Expiration Time occurring during the Exchange Act.
first one hundred eighty (b180) On days following the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibitshereof, the Offer Condition set forth in paragraph (B) of Annex I is not reasonably likely to Purchase and be satisfied within such ten (10) Business Day extension period, then Buyer shall be permitted to extend the Offer on such occasion for up to twenty (20) Business Days; provided further, however, that (x) Buyer shall not be required to extend the Offer to a form of letter of transmittal and summary advertisement date later than the End Date (collectively, together with any amendments and supplements thereto, as the “Offer Documents”). Subject End Date may be extended pursuant to Section 5.28.01(b)(i)) and (y) if the sole then-unsatisfied Offer Condition is the Minimum Condition, the Company hereby consents Buyer shall not be required to the inclusion in extend the Offer Documents on more than two (2) occasions in consecutive periods of the recommendation and the approval of the Company Board of Directors referred up to in Section 3.20(a). The Offer Documents will comply in all material respects ten (10) Business Days each (with all applicable provisions of the Exchange Act. Parent and Sub agree each such period 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 Law. Parent and Sub, end at 5:00 p.m. (New York City time) on the one hand, last Business Day of such period) (or such other duration as may be agreed to by Buyer 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1 and none a failure to satisfy any of the events described conditions set forth in any of paragraphs (a) or through (bi) of Annex III hereto have occurred and be continuing (unless waived by I hereto, Parent shall or Sub), Sub shall, and Parent 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 the "Exchange Act")) a tender offer (as amended from time to time in accordance with the rules and regulations promulgated thereunderthis Agreement, the “Exchange Act”"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 Offer within ten (10) business days following seller in cash. For purposes of this Article I, the date hereof. party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligations obligation of Sub Offeror to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of in 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 III I hereto. 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 Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of such conditionsthe 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 Price and to make any other changes in the terms and conditions of the Offer; provided, however, that Sub shall notunless -------- ------- previously approved by the Company in writing, and Parent shall cause Sub Offeror will not to, (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 Price 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 Company, (v) except as provided in the next sentence, extend the Offer, (vi) 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, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or vii) amend any other term or condition of the Offer, Offer in each case in any a manner adverse to the holders of the Company 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)Shares. Notwithstanding the foregoing, 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 Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date ifbeing 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled (or extended) expiration date of the Offer, any of the conditions set forth 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 Annex III hereto (other than the Minimum ConditionSection 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived for up to two periods of not more than ten (10) business days per extension, 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, interpretation or interpretation position of the United States Securities and Exchange Commission (“the "SEC”), ") or the staff thereof, thereof applicable to the Offer. In addition 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 foregoing terms and excluded from any such limitationsconditions of the Offer and this Agreement, Sub also may provide a “subsequent offering period” in accordance 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 14d-11 14e-1(c) under the Exchange Act.
(b) On . Subject to the date of commencement 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, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, supplements which will contain the offer to purchase and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (collectively, together with any supplements or amendments thereto and supplements 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 provisions of the Exchange Actfederal securities laws and any other applicable laws. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andParent, 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 Law. Parent and Sub, on the one hand, Offeror and the Company, on the other hand, 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 or as otherwise required by Lawrespect. Parent and Sub further agree to 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 Lawfederal securities laws and any other applicable laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO Offer Documents and any amendment amendments thereto before it is filed prior to the filing thereof with the SEC, and Parent and Sub shall ; provided that Offeror will attempt to give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counselcounsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. In addition, Parent and Sub agree to Offeror will provide the Company and its counsel with any comments, whether written or oral, that Parent, Sub or their comments Offeror and its counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer DocumentsDocuments promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration cause all tendered Shares to all reasonable views and comments be returned to the registered holders of the Company and its legal counsel with respect thereto.
(c) Parent shall provide Shares represented by the certificate or cause to be 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 certificates surrendered to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawExchange 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 this Agreement shall not have been terminated in accordance with Section 8.1 Article V hereof and none of the events described or conditions set forth in any of paragraphs Annex I hereto (athe “Tender Offer Conditions”) or (b) of Annex III hereto shall have occurred or be existing and be continuing (unless not have been waived by Parent or Sub)Purchaser, Sub shall, and Parent Purchaser shall cause Sub to, commence (i) within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 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”), as promptly as reasonably practicable (but in any event no later than the Final Launch Date (as defined below)), commence (such date on which the offer commences in the United States, the “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 within ten Price, (10ii) business days following as promptly as reasonably practicable (on or prior to the date hereofLaunch 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 SRC, in each case in connection with the Offer (together, such documents as may be amended and supplemented, the “Offer Documents”) and (iii) use reasonable efforts to consummate the Offer, subject 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, including promptly and accurately providing to Purchaser any and all information and documents reasonably requested by Purchaser for this purpose. The obligations obligation of Sub Purchaser to accept for payment and to or pay for any Shares validly tendered and not withdrawn prior pursuant to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall will be subject only to the satisfaction or waiver by Purchaser of the conditions set forth in Annex III I hereto. Subject Company agrees that no Shares held by Company or any of its Subsidiaries will be tendered 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 Purchaser pursuant to the Offer. The Offer For the purpose of this Agreement, the “Final Launch Date” shall be made by means the date that is twenty-five (25) business days following public announcement of an offer 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 purchase 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 Purchase”commence the Offer and is using all reasonable efforts to do so, the Final Launch Date shall automatically extend for an additional ten (10) that contains business days. The obligation of the terms set forth Purchaser to commence the Offer as provided in this Section 1.1(a) is subject to Purchaser not being entitled to terminate this Agreement and 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 to amend or waive any of the conditions set forth in Annex III hereto. Parent expressly reserves I hereto (other than the right to waive any of such conditionsMinimum Condition), to increase the price per Share payable in the Offer Price and to make any other changes in the terms of the Offer; providedprovided that without the prior written consent of Company, however, that Sub Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought to be purchased in the Offer, waive or change impose additional conditions to the Offer, amend the Minimum Condition (as defined in Annex III I 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, in each case Offer in any manner adverse to the holders of Shares. The Offer shall remain open at least until the Company 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) 20 business days after the 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 unless Purchaser shall have extended the prior written consent period of time for which the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement Offer is open in accordance with Section 8.1the terms of this Agreement, Sub shallin which event the term “Expiration Date” shall mean the latest time and date as the Offer, upon the written request as so extended, may expire. If, at any Expiration Date, any of the Company at least one business day before Tender Offer Conditions are not satisfied or waived by Purchaser, Purchaser may extend the then-scheduled expiration dateOffer from time to time; provided, and mayhowever, without the consent of the Company, (i) Purchaser may not extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration 60th day following the Launch Date without Company’s prior written consent. Subject to the terms of the Offer, any Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of the conditions set forth Expiration Date, Purchaser will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable but in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more any event no later than ten (10) business days per extension, after the Expiration Date (ii) from time the date that Purchaser accepts for payment all Shares validly tendered and not validly withdrawn pursuant to time, extend the Offer if at shall be referred to as the scheduled or extended Expiration Date “Acceptance Date”), the Minimum Condition is not satisfieddate that Purchaser pays for such Shares, for up to two periods of which shall in any event occur no later than ten (10) business days per extension or (iii) extend 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 ADSs will be as promptly as practicable, subject to applicable Law, on the Acceptance Date and references in this Agreement to Payment Date relating to ADSs will be considered to mean the relevant Acceptance Date). Without the prior written consent of Company, Purchaser shall not accept for payment or pay for any period required by any ruleShares in the Offer if, regulation or interpretation as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the United States Securities and Exchange Commission Minimum Condition (“SEC”as defined in Annex I), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also Purchaser may provide a “subsequent offering period” period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act.
(b) On Act and Rule 19 under the date of 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 the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act such subsequent offering period (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TOSubsequent Offering”). The Schedule TO As used in this Agreement, a “business day” shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with mean any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents day 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andyear other than a Saturday, 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be provided to Sub promptly following the expiration of the Offer Sunday or any subsequent extension thereofother day on which banks located in New York, as applicableNew York USA or Makati City or Manila, all funds necessary to promptly pay in full in cash the aggregate Offer Price Philippines are generally closed for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Lawbusiness.
Appears in 2 contracts
Sources: Acquisition Agreement (Ayala Corp), Acquisition Agreement (eTelecare Global Solutions, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII, (ii) nothing shall have occurred that would render any of the conditions set forth in the first paragraph of Annex A incapable of being satisfied and (iii) none of the events set forth in the second paragraph of Annex A hereto shall have occurred and be continuing, as promptly as practicable (but in no event later than seven (7) business days after the date of this Agreement) Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange 2 Commission (the "SEC") promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase for cash (the "Offer") any and all of the issued and outstanding shares of Common Stock ("Shares") (including the related Rights (as defined in Section 4.02 of this Agreement)) at a price of $35.00 per Share, net to the seller in cash. For purposes of this Agreement, the term "Transaction Consideration" shall mean $35.00 per Share in cash or any higher price as shall be paid in respect of the Shares in the Offer. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject to the conditions set forth in Annex A hereto (any or all of which may, subject to the provisions hereof, be waived by Parent or Purchaser, subject to applicable law). The initial expiration date of the Offer (the "Expiration Date") shall be the 20th business day following the commencement of the Offer (determined using Rules 14d-1 and 14d-2 under the Exchange Act), but in no event shall be later than October 6, 2000. Without the prior written consent of the Company, Purchaser shall not (i) decrease the Transaction Consideration, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) change the form of consideration payable in the Offer (although Purchaser shall, in its sole discretion, have the right to increase the amount of the Transaction Consideration), (iv) add to the conditions to the Offer set forth in Annex A, (v) waive the Minimum Condition (as defined in Annex A) or (vi) make any other change in the terms or conditions of the Offer which is adverse to any holder of Shares, it being agreed that neither a waiver by Purchaser of any of the conditions set forth in Annex A (other than the Minimum Condition) in whole or in part at any time and from time to time in its discretion, nor the extension of the Expiration Date as permitted below, shall be deemed to be adverse to any holder of Shares. Purchaser may, without the consent of the Company, extend the Expiration Date (which extended date shall thereupon be the Expiration Date for purposes of this Agreement):(i) in increments of not more than ten (10) business days each, if at the scheduled Expiration Date any of the conditions to Purchaser's obligation to purchase Shares are not satisfied, until such time as such conditions are satisfied or waived and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. In addition, Purchaser shall have the right, without the consent of the Company, to make available a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act). Without limiting the right of Purchaser to extend the Offer, provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)Article VIII hereof, Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 if the conditions set forth in Annex III hereto. Subject A are not satisfied or, to the prior satisfaction extent permitted hereby, waived by Purchaser as of the Expiration Date, then, except to the extent that such conditions are incapable of being satisfied, at the request of the Company, Purchaser will extend the Expiration Date from time to time until the earlier of the date that such conditions are satisfied or waiver by Parent waived or Sub of conditions the date that is thirty (30) days (or if the condition 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 clause (the “Offer to Purchase”ii) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms first paragraph of Annex A has not been satisfied, 60 days) from the date of the Offerinitial Expiration Date(such date the "Mandatory Extension Date," and, if such date is later than the then-scheduled Expiration Date, the Mandatory Extension Date shall thereupon be the Expiration Date for purposes of this Agreement); provided, however, that Sub Purchaser shall not, and Parent shall cause Sub not to, decrease be required to so extend the Offer Price or change Expiration Date if the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend failure to meet any of the conditions set forth in Annex III hereto A was caused by or otherwise modify resulted from the failure of the Company to perform in any material respect any covenant or amend agreement of the Company contained herein, or the material breach by the Company of any other term representation or condition warranty contained herein. Purchaser shall, subject to the terms and conditions of the Offer, in each case in any manner adverse to the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and Shares tendered as soon as it is legally permitted to accept for payment do so under applicable Lawlaw.
Appears in 2 contracts
Sources: Merger Agreement (Bayer Corp), Merger Agreement (Bayer Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 8.01 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III ANNEX A hereto shall have occurred and or be continuing existing (unless such event shall have been waived by Parent or Acquiror Sub), Acquiror shall cause Acquiror Sub shallto commence, and Parent Acquiror Sub shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereundercommence, the “Exchange Act”)Offer at the Per Share Amount as prompt as reasonably practicable after the date hereof, but in no event later than fifteen (15) days after the date hereof. The initial expiration date for the Offer within ten (10the "INITIAL OFFER EXPIRATION DATE") shall be no longer than twenty (20) business days following the date hereofcommencement of the Offer. The obligations obligation of Acquiror Sub to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the "MINIMUM CONDITION") that at least the number of Shares that, when combined with the Shares, if any, already owned by Acquiror and its direct and indirect subsidiaries, constitute fifty-one percent (51%) of the "Voting Shares" shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (as it may be extended in accordance with requirements ii) the satisfaction or waiver of this Section 1.1(a)) shall be subject only to the other conditions set forth in Annex III hereto. Subject ANNEX A hereto and 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 conditions of this Agreement. "VOTING SHARES" means the then outstanding Shares, together with all of the then issued and pay for all Shares tendered and not withdrawn promptly following the acceptance outstanding shares of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase Class A Preferred Stock, par value $.01 per share (the “Offer to Purchase”"Class A Preferred Stock") and all of the Shares issuable under Options (as defined in Section 2.07) that contains are or may become exercisable between the terms set forth in this Agreement Tender Offer Acceptance Date (as defined below) and the conditions set forth Effective Time (as defined in Annex III heretoSection 2.02) or under any other option, warrant, convertible security or right or other commitment or arrangement in effect on the Tender Offer Acceptance Date. Parent Acquiror Sub expressly reserves the right to waive any of such conditionscondition (other than the Minimum Condition), to increase the Offer Price price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease (notwithstanding Section 8.03) no change may be made which (A) decreases the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought price per Share payable in the Offer, waive or change (B) reduces the Minimum Condition (as defined maximum number of Shares to be purchased 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, in each case in any manner adverse to the holders of the Company Common Stock, impose any (C) imposes 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 addition to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions those set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionANNEX A hereto, (iiD) from time to time, extend amends or changes 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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.terms
Appears in 2 contracts
Sources: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
The Offer. 2.1. The Offer. ---------
2.1.1. Provided that (ai) this Agreement shall not have been terminated in accordance with Section 10.1, and (ii) none of the events set ------------ forth in Annex A hereto shall have occurred or be existing, upon the terms and ------- subject to the conditions set forth herein and as soon as practicable following the execution and delivery hereof by the parties hereto, the Company shall commence a cash tender offer to acquire all of the issued and outstanding Shares, including the associated preferred share purchase rights, for $17.00 per Share (as defined in the recitals hereto, the "Offer"). The Company shall not be ----- required to accept for payment and pay for Shares tendered pursuant to the Offer, in accordance with the terms hereof and the terms of the Offer, unless (i) at least seventy-five percent (75%) of the outstanding Shares (on a fully diluted basis) after giving effect to Section 2.4 shall have been validly tendered and ----------- not withdrawn prior to the expiration of the Offer (the "Minimum Condition"), ----------------- and (ii) the other conditions set forth in Annex A hereto shall have been ------- satisfied. The Per Share Amount payable by the Company in respect of each Share tendered pursuant to the Offer 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. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), as promptly as practicable following the expiration of the Offer, the Company shall deliver, or cause to be delivered, the Per Share Amount to each Person who has validly tendered (and not withdrawn) Shares pursuant to the Offer, in exchange for each Share so tendered and not withdrawn.
2.1.2. Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article X hereof and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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--------- ----- A shall not have been satisfied, in each case in any manner adverse to the holders of the Company Common Stockshall, impose any conditions to at the Offer that are not set forth on Annex III heretodirection of TNF, or - extend the Offer beyond a expiration date that is twenty-one (21) business days after commencement of the Offer or from time to time until a date not later than July 31, 1999.
2.1.3. Upon 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, but terms and 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than herein, concurrently with the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub the Company shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a SEC an Issuer Tender Offer Statement on Schedule TO 13E-4 (together with all amendments and supplements thereto, the "Schedule 13E-4") with respect to -------------- the Offer, and the Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and TNF shall file with the SEC 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 (together with all amendments, supplements and exhibits theretoOffer, the “Schedule TO”Stock -------------- Purchase, the Asset Dropdown, the Merger and the other transactions contemplated hereby (collectively, the "Transactions"). The Schedule TO 13E-4 and the Schedule ------------ 13E-3 shall includecontain, as exhibitsor shall incorporate by reference, an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal, any ----------------- related summary advertisement and any other documents related to the Offer (the Schedule 13E-4, the Schedule 13E-3, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"Offer Documents”"). Subject to Section 5.2, Each of the Company hereby consents to the inclusion and TNF --------------- shall correct promptly any information provided by it for use in the Offer Documents of the recommendation which shall have become false or misleading, and the approval each 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 provisions of the Exchange Act. Parent and Sub agree to TNF shall take all commercially reasonable steps actions necessary to cause the Offer Documents Schedule 13E-4 and the Schedule 13E-3, as so corrected, to be filed with the SEC andand the other Offer Documents, subject as so corrected, to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretosecurities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Transaction Agreement (Green Equity Investors Iii Lp), Transaction Agreement (North Face Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 As promptly as practicable (and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subevent within ten Business Days after the date hereof), Sub shallthe Purchaser shall commence, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) , the Offer within ten (10) business days following to purchase all the date hereofoutstanding Shares at the Offer Price. The obligations consummation of Sub the Offer, and the obligation of 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 and not properly withdrawn prior to the expiration Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Offer Shares then outstanding (as it may be extended in accordance with requirements determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Section 1.1(a)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) shall be subject only to (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex III hereto. Subject I. The conditions and requirements to the prior satisfaction or waiver by Parent or Sub of conditions Offer set forth in Annex III heretoI are 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, Sub shallin its sole discretion, in whole or in part at any time and Parent 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 cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer promptly. 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 contains describes the terms set forth and conditions of the Offer in accordance with this Agreement Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex III hereto. Parent I. The Purchaser expressly reserves the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive or change the Minimum Condition Condition, (as defined in Annex III hereto), modify or v) amend any of the other conditions and requirements to the Offer set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, I in each case in any a manner materially adverse to the holders of Shares or (vi) extend the Company Common StockExpiration Date in a manner other than in accordance with this Agreement. Notwithstanding anything to the contrary in this Agreement, impose the Offer Price shall be adjusted appropriately to reflect the effect of any conditions stock split, reverse stock split, stock dividend (including 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 are not set forth on Annex III heretonothing 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) Unless extended in accordance with the terms of this Agreement, or extend the Offer beyond a shall expire at 12:00 midnight (New York City time) on the date that is twenty-one 20 Business Days (21calculated in accordance with Rule 14d-1(g)(3) business days after under the Exchange Act) following the commencement of the Offer or (within the last extension meaning of Rule 14d-2 under the Exchange Act) (as permitted such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Section 1.1)Agreement, if anythe date and time to which the Offer has been so extended (the Initial Expiration Date, of or such later date and time to which the OfferInitial Expiration Date has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) except as 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 belowin Annex I) have not been satisfied, in each case without the prior written consent of the Company (such consent to be authorized or, where permitted by applicable Law and this Agreement, waived by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding Purchaser, the foregoing, but subject to Purchaser shall (and Parent shall cause 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, (iPurchaser to) extend the Offer beyond the initial expiration date ifon one or more occasions, at any scheduled (or extended) expiration for successive periods of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods 20 Business Days each, until the satisfaction or, where permitted by applicable Law and this Agreement, waiver by the Purchaser of not more than ten such conditions. In addition, the Purchaser shall (10) business days per extension, (ii) from time to time, extend and Parent shall cause 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 (iiiPurchaser to) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the United States Securities and Exchange Commission (the “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 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 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 staff thereof, applicable 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 Offer. In addition to exercise of the foregoing and excluded from any such limitationsTop-Up Option), Sub also may the Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct of up to 20 Business Days. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer 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).
(bg) On 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 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 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 to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, Parent and Sub the Purchaser shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (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 letter of transmittal and a form of summary advertisement (collectively, together with any amendments amendments, supplements and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary Purchaser agrees 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 Lawthe Exchange Act. The Company shall promptly furnish to Parent and Subthe Purchaser in writing all information concerning the Company 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 or as otherwise required by applicable Law. Parent , and Sub further agree to take all steps necessary the Purchaser agrees to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their its counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect theretocounsel.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Interclick, Inc.), Merger Agreement (Yahoo Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 8.01 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III A hereto shall have occurred and or be continuing (unless waived by Parent or Sub)existing, Sub shallPurchaser shall commence, and Parent shall cause Sub toPurchaser to commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunderAct, the “Exchange Act”)) the Offer within ten (10) business days following as promptly as reasonably practicable 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. The obligations obligation of Sub Purchaser to accept for payment and to pay for any Shares validly and/or Warrants tendered and not withdrawn prior pursuant 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 the conditions set forth in Annex III hereto. 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 A hereto. Parent Purchaser expressly reserves the right to waive any of such conditionscondition, to increase the Offer Price Per Share Amount and/or the Per Warrant Amount and to make any other changes in the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that Sub shall notthat, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 foregoingSpecial Committee, 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, Purchaser will not (i) decrease the Per Share Amount or the Per Warrant Amount, (ii) reduce the maximum number of Shares or Warrants to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer set forth in Annex A hereto, (v) extend the expiration date of the Offer beyond the initial twentieth business day following commencement thereof; PROVIDED, HOWEVER, Purchaser may extend the expiration date if, at any scheduled (or extended) expiration of the Offer, any of (A) if the conditions to the Offer set forth in Annex III hereto A have not been satisfied and (other than B) to the Minimum Condition) shall not be satisfied or waived for up extent necessary to two periods of not more than ten respond to comments on the Offer Documents (10) business days per extension, (iias defined below) 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 or interpretation of the United States Securities and Exchange Commission (“the "SEC”)") or (vi) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of Shares or Warrants. The Per Share Amount and the Per Warrant Amount shall, or subject to any applicable withholding of taxes, be net to each seller in cash, upon the staff thereof, applicable terms and subject to the conditions of the Offer. In addition Subject to the foregoing terms and excluded from any such limitationsconditions of the Offer, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay, as promptly as practicable after expiration of the Exchange ActOffer, for all Shares and Warrants validly tendered and not properly withdrawn.
(b) On the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act SEC (“Regulation M-A”), i) a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1, including all exhibits thereto (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"SCHEDULE 14D-1"), with respect to the Offer Documents”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"). Subject The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to Section 5.2purchase (the "OFFER TO PURCHASE") and the related letter of transmittal (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase, the related letter of transmittal and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "OFFER DOCUMENTS"). Parent, Purchaser and the Company hereby consents to the inclusion shall correct promptly any information provided by any of them for use in the Offer Documents of the recommendation which shall become false or misleading, 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 provisions of the Exchange Act. Parent and Sub agree to Purchaser shall take all commercially reasonable steps necessary to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3, as so corrected, to be filed with the SEC andand the other Offer Documents, subject as so corrected, to the Company’s compliance with Section 1.2(c), be disseminated to holders of SharesShares and Warrants, in each case as and to the extent required by applicable Lawlaw. Parent and Sub, on the one hand, and the The Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if Special Committee and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company their respective counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed Offer Documents prior to the filing thereof with the SEC, and . Parent and Sub Purchaser shall give due consideration to 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 Company, the Special Committee and their respective counsel with a copy of any comments, whether written comments or oral, that Parent, Sub telephonic notification of any oral comments Parent or their counsel Purchaser may receive from time to time prior the SEC or its staff with respect to the expiration 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 termination of this Agreement. In the Offer, event that Parent or the Purchaser receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration take all other actions necessary to all reasonable views and comments of resolve the Company and its legal counsel with respect theretoissues raised therein.
(c) Parent shall provide or cause to be provided to Sub promptly following Purchaser on a timely basis the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly accept for payment, and pay in full in cash the aggregate Offer Price for those for, any Shares and/or Warrants that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is Purchaser becomes obligated to accept for payment payment, and pay for, pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Vivendi), Merger Agreement (Aqua Alliance Inc)
The Offer. (a) Provided that this Agreement shall --------- not have been terminated in accordance with Section 8.1 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III I hereto shall have occurred and be continuing (unless waived by Parent or Sub)continuing, Sub shallas promptly as practicable, and Parent and, in any event, within seven business days of the date hereof, the Purchaser shall cause Sub to, 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”")) the Offer within ten (10) business days following to ------------ purchase for cash all Shares at the date hereofOffer Price. The obligations of Sub the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by Parent or the Purchaser, represents at least a majority of the Shares outstanding on a fully-diluted basis (as it may be extended in accordance with requirements of this Section 1.1(a)the "Minimum Condition") shall be subject only to and (ii) the ----------------- other conditions set forth in Annex III I hereto. Subject to the prior satisfaction or waiver by Parent or Sub the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex III I hereto, Sub the Purchaser shall, and Parent shall cause Sub toin accordance with the terms of the Offer, 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall notfor, and Parent shall cause Sub the Purchaser to accept for payment and pay for, all Shares validly tendered and not towithdrawn pursuant to the Offer promptly after expiration of the Offer (subject to the provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Purchaser shall not, at any time, amend or waive the Minimum Condition and shall not decrease the Offer Price or Price, change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought in the Offer, waive or change impose additional conditions to the Minimum Condition (as defined in Annex III hereto)Offer, 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, in each case Offer in any manner adverse to the holders of the Company 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 Shares without the prior written consent of the Company Company, provided, -------- however, that (such consent to be authorized by x) if on the Company Board 20th business day following the commencement of Directors or a duly authorized committee thereofthe ------- Offer (within the meaning of Rule 14d-2 under the Exchange Act) (the "Initial ------- Expiration Date"). Notwithstanding the foregoing, but subject all conditions to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1Offer shall not have been satisfied or --------------- waived, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, in its sole discretion, extend the Offer if at for such period as the scheduled or extended Expiration Date Purchaser may determine, and (y) the Minimum Condition is not satisfiedPurchaser may, for up to two periods of ten (10) business days per extension or (iii) in its sole discretion, extend the Offer for any period required by any rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the staff thereof, thereof applicable to the Offer. In addition addition, subject to the foregoing 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 clause (c) of Annex I shall have occurred and excluded from be continuing (and the 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 limitationsevent 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), Sub also may then in each such case, the Purchaser shall extend the Offer. In the event the Minimum Condition is satisfied and the Purchaser purchases Shares pursuant to the Offer, the Purchaser may, in the Purchaser's sole discretion, provide a “"subsequent offering period” " in accordance with Rule 14d-11 under the Exchange Act. In addition, the 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, in each case in its sole discretion and without the Company's consent.
(b) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ") a Tender Offer Statement on Schedule TO with --- respect to the Offer (together with all amendmentsOffer, supplements which shall include the offer to purchase and exhibits thereto, forms of the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to the Purchaser shall cause the Offer Documents to be --------- filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), and disseminated to holders of Shares, in each case Shares as and to the extent required by applicable Lawfederal securities laws. Parent and Subthe 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 respect or as otherwise required by Lawlaw. Parent and Sub The Purchaser further agree agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case Shares as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto Offer Documents before it is they are filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel with any comments, whether written comments or oral, communications that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer DocumentsDocuments promptly after Parent's or the Purchaser's, promptly upon as the case may be, receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 Article VII, and none (ii) all of the events described conditions set forth in any of paragraphs (ac)(i) or through (bc)(vi) of Annex III hereto have occurred I shall then be satisfied (in the case of (x) paragraphs (c)(ii) through (c)(v), giving effect only to representations and be continuing warranties made as of dates prior to such time and (unless 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 or Merger Sub), as promptly as practicable (and in any event within ten Business Days) after the date of this Agreement, Merger Sub shall, 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 (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) , the Offer within ten to purchase all the outstanding Shares at the Offer Price.
(10b) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior Subject to the expiration satisfaction of the Offer (as it may be extended in accordance with requirements Minimum Condition and the satisfaction, or waiver by Merger Sub, of this Section 1.1(a)) shall be subject only to the other conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or I, Merger Sub of conditions set forth in Annex III hereto, Sub shall, shall (and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and ) accept for payment and pay for all Shares validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer as soon as practicable, but in any event no later than three Business Days, after the Expiration 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 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 contains describes the terms set forth and conditions of the Offer in accordance with this Agreement Agreement, including the Minimum Condition and the other conditions set forth in Annex III hereto. Parent I. Merger Sub expressly reserves the right to waive any of such conditions, to increase the Offer Price and 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, Merger Sub shall not, and Parent shall cause not permit Merger Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend, modify or waive or change the Minimum Condition Condition, (as defined in v) add any additional conditions to those set forth on Annex III hereto), modify I or amend any of the conditions and requirements to the Offer set forth in Annex III hereto I in a manner adverse to the holders of Shares, (vi) extend the Expiration Date in a manner other than in accordance with this Agreement or (vii) otherwise amend, modify or amend supplement any other term or condition of the Offer, terms of the Offer in each case in any a manner adverse to the holders of the Company Common StockShares.
(d) Unless extended in accordance with the terms of this Agreement, impose any conditions to the Offer that are not set forth shall expire at midnight (New York City time) on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after 20 Business Days following the commencement of the Offer or (the last extension (as permitted “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Section 1.1)Agreement, if anythe 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 in accordance with the terms of the Offerthis Agreement, whichever is later (the “Expiration Date”) except as ). If on any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions set forth belowin Annex I) have not been satisfied, or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten Business Days each, the length of each such period to be determined by Parent in its sole discretion, in each case order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to, and shall not without the Company’s prior written consent, extend the Offer beyond August 20, 2015 (the “Outside Date”). In addition, Merger Sub 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.
(e) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company Company, except if this Agreement is terminated pursuant to Article VII. If this Agreement is terminated pursuant to Article VII, Merger Sub shall (such consent to be authorized and Parent shall cause Merger Sub to) promptly, irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Company Board of Directors Merger Sub, or a duly authorized committee thereof). Notwithstanding the foregoing, but subject this Agreement is terminated prior to the parties’ respective rights purchase of Shares in the Offer, 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 terminate this Agreement return, in accordance with Section 8.1applicable Law, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable all tendered Shares to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Actregistered holders thereof.
(bf) On As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits theretoexhibits, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements theretosupplements, 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 provisions of the Exchange Act. Parent and Merger 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 Lawthe Exchange Act. Parent and Merger Sub, 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 or as otherwise required by applicable Law. , and Parent and Merger Sub further agree to take all steps necessary to promptly cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Merger Sub shall give due consideration to all the reasonable additions, deletions or modifications thereto changes suggested by the Company and its legal counsel. In addition, Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral formresponses. The Company and its legal counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Merger Sub shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested by the Company and its legal counsel with respect theretocounsel. The date and time at which Merger Sub accepts for payment Shares tendered and not properly withdrawn pursuant to the Offer is referred to in this Agreement as the “Acceptance Time.”
(cg) Parent shall provide or cause to be provided to Merger Sub promptly following on a timely basis 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 purchase any Shares that have been validly tendered and not withdrawn Merger Sub becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VIII hereof and none of the events described set forth in any Annex I hereto (the "Tender Offer Conditions") shall have occurred, as promptly as practicable but in no event later than the fifth business day from the date of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Sub the Purchaser shall, and Parent shall cause Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the “"Exchange Act”")) an offer to purchase all outstanding Shares at the Offer within ten Price and shall file all necessary documents with the Securities and Exchange Commission (10the "SEC") business days following in connection with the date hereofOffer (the "Offer Documents"). The obligations obligation of Sub the Purchaser to accept for payment and to or pay for any Shares validly tendered 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 pursuant thereto will be subject only to the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise I hereto.
(b) Without the prior written consent of the Company, Purchaser shall not (i) impose conditions to the Offer in addition to the Tender Offer Conditions, (ii) modify or amend the Tender Offer Conditions or any other term or condition of the Offer, Offer in each case in any a manner adverse to the holders of Common Shares, (iii) reduce the Company Common Stock, impose any conditions number of Shares subject 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 (iv) reduce the “Expiration Date”Offer Price, (v) except as set forth belowprovided in the following sentence, in each case without extend the prior written consent Offer, if all of the Company Tender Offer Conditions are satisfied or waived, or (such consent to be authorized by vi) change the Company Board form of Directors or a duly authorized committee thereof)consideration payable in the Offer. Notwithstanding the foregoing, 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 Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offertime, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) and from time to time, extend the Offer (i) if at the then scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods expiration date of ten (10) business days per extension or (iii) extend the Offer any of the conditions to Purchaser's obligation to accept for payment and pay for all Shares shall not have been satisfied or waived; (ii) for any period required by any rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the its staff thereof, applicable to the Offer; or (iii) if all Tender Offer Conditions are satisfied or waived but the number of Common Shares tendered is at least equal to 70%, but less than 90%, of the then 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. In addition So long as this Agreement is 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 the foregoing expire, subject however to Purchaser's and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 Parent's rights of termination under the Exchange Actthis Agreement.
(bc) On the date of commencement of the Offer, Parent and Sub shall file with Purchaser represent that the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 the provisions of applicable federal securities laws and, on the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be date filed with the SEC andand on the date first published, subject sent or given to the Company’s compliance with Section 1.2(c)'s stockholders, disseminated shall not contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements made therein, in each case as and 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 extent required by applicable LawCompany in writing for inclusion in the Offer Documents. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. Parent and Sub the Purchaser further agree 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 Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Western Atlas Inc), Merger Agreement (3-D Geophysical Inc)
The Offer. (a) Provided that Subject to this Agreement shall not have having been terminated in accordance with the provisions of Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)hereof, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, as promptly as practicable, but in no event later than five business days from the date of the public announcement of the terms of this Agreement or the Offer, commence an offer to purchase for cash (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as it may be amended (together in accordance with the rules and regulations promulgated thereunderterms of this Agreement, the “Exchange Act”"OFFER") all of the Company's outstanding shares of common stock, no par value (the "SHARES"), subject to the conditions set forth in Exhibit A hereto (the "CONDITIONS"), at a price of $13.00 per Share, net to the seller in cash. Subject only to the Conditions, Purchaser shall, and Parent shall cause Purchaser to, (i) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for all Shares tendered pursuant to the Offer as promptly as practicable following the expiration date of the Offer, and (ii) extend the period of time the Offer is open until the first business day following the date on which the Conditions are satisfied or waived in accordance with the provisions thereof; provided that (x) Purchaser shall be permitted but shall not -------- be obligated to extend the time the Offer is open if the Company is in breach in any material respect of its covenants or agreements contained herein and (y) Purchaser shall be permitted but shall not be obligated to extend the time the Offer is open if there is a reasonable likelihood that one or more of the Conditions cannot be satisfied; and provided, further, that the Purchaser shall -------- ------- in no event be obligated or permitted to extend the period of time the Offer is open beyond July 15, 1996. Neither Purchaser nor Parent will extend the expiration date of the Offer beyond the twentieth business day following commencement thereof unless one or more of the Conditions shall not be satisfied. Purchaser expressly reserves the right to amend the terms and conditions of the Offer; provided, that without the consent of the Company, no amendment may be made -------- which (i) decreases the price per Share or changes the form of consideration payable in the Offer, (ii) decreases the number of Shares sought, or (iii) imposes additional conditions to the Offer or amends any other term of the Offer in any manner adverse to the holders of Shares. Upon the terms and subject to the Conditions, Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares validly tendered 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 the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date The Company will not, nor will it permit any of commencement of the Offerits wholly owned Subsidiaries (as defined below) to, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to tender into the Offer (together with all amendmentsany Shares beneficially owned by it; provided, supplements and exhibits theretothat Shares held beneficially or of record -------- by any plan, program or arrangement sponsored or maintained for the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form benefit of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 employees of the Company Board or any of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents its Subsidiaries shall not be deemed 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested held by the Company and its legal counsel. In addition, Parent and Sub agree to provide regardless of whether the Company with has, directly or indirectly, the power to vote or control the disposition of such Shares. For purposes of this Agreement, "SUBSIDIARY" means, as to any commentsPerson (as defined below), any corporation, partnership or joint venture, whether written now existing or oralhereafter organized or acquired: (a) in the case of a corporation, that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of which at least a majority of the Offer, from outstanding shares of stock having by the SEC or its staff with respect terms thereof ordinary voting power to elect a majority of the Offer Documents, promptly upon receipt board of directors of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any corporation (other than stock having such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments voting power solely by reason of the Company and happening of any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of its legal counsel with respect thereto.
Subsidiaries or (cb) Parent shall provide in the case of a partnership or cause to be provided to Sub promptly following the expiration joint venture, in which such Person or a Subsidiary of such Person is a general partner or joint venturer or of which a majority of the Offer 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 subsequent extension thereofindividual, as applicablecorporation, 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Lawcompany, voluntary association, partnership, joint venture, trust, unincorporated organization or other entity.
Appears in 2 contracts
Sources: Merger Agreement (Forum Group Inc), Merger Agreement (Marriott International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 7.1, and none of the events described or conditions in any of paragraphs clause (a) or (bc) of Annex III hereto I shall have occurred and be continuing continuing, as promptly as practicable after the date hereof (unless waived by Parent or Subbut in no event later than eleven (11) Business Days after the date of the initial public announcement of this Agreement), Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”), the Offer.
(b) Subject to (i) there being validly tendered in the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not properly withdrawn prior to the expiration Expiration Date that number of Shares which, together with the number of Shares, if any, then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of all outstanding Shares (determined on a Fully Diluted Basis) entitled to vote (A) in the election of directors or (B) upon the adoption of this Agreement and approval of the Offer Merger, on the date Shares are accepted for payment (as it may be extended in accordance with requirements of this Section 1.1(acollectively, the “Minimum Condition”); and (ii) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub the Purchaser of the other conditions and requirements set forth in Annex III heretoI, Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly following as practicable after the Purchaser is legally permitted to do so under applicable Law (the date and time of acceptance of for payment, the “Acceptance Time”). Parent shall provide or cause to be provided to Purchaser on a timely basis funds sufficient to purchase and pay for any and all Shares that Purchaser becomes obligated to accept for payment and purchase pursuant to the Offer. 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).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains describes the terms set forth and conditions of the Offer in accordance with this Agreement and Agreement, including the conditions and requirements set forth in Annex III hereto. I. Parent and the Purchaser expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and Price, waive any condition to the Offer (except the Minimum Condition) or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub unless previously approved by the Company in writing, the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or payable in the Offer, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive or change the Minimum Condition Condition, (as defined in Annex III hereto), v) amend or modify or amend any of the other conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, I in each case in any a manner adverse to the holders of Shares, (vi) extend the Company Common StockExpiration Date other than in accordance with this Agreement, impose or (vii) amend any conditions other term of the Offer which is adverse to the Offer that are not set forth on Annex III heretoholders of Shares.
(d) Subject to the provisions of this Agreement, or extend unless extended in accordance with the terms of this Agreement, the Offer beyond a shall expire at 12:00 midnight (Eastern time) on the date (the “Initial Expiration Date”) that is twenty-one twenty (2120) business days after Business Days following the commencement of the Offer or or, if the last extension (as permitted Offer has been extended in accordance with this Section 1.1)Agreement, if anyat the time and date to which the Offer has been so extended (the Initial Expiration Date, of or such later time and date to which the OfferOffer has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) 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, 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 Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at if on or prior to any then scheduled (or extended) expiration of the Offer, Expiration Date any of the conditions set forth in Annex III hereto (other than of the Minimum Condition) shall Offer are not be satisfied or waived waived, extend the Offer for up to two periods such period as the Purchaser determines, provided that such extension shall be in increments of not more than ten (10) business days per extensionBusiness Days if all of the conditions set forth on Annex I other than the Minimum Condition have been satisfied or waived at such Expiration Date. In addition, if on or prior to any then scheduled Expiration Date, any of the conditions to the Offer have not been satisfied or, to the extent waivable by the Parent or the Purchaser pursuant to this Agreement, waived by Parent or the Purchaser, subject to Parent’s rights in Article 7, the Purchaser shall, and Parent shall cause the Purchaser to, extend the Offer for successive periods of up to ten (10) 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 Termination 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, its Subsidiaries, or any Company Representative, in accordance with Section 5.4, except to the extent that prior to the then scheduled Expiration Date (i) 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, (ii) from time to timethe Company Board has reconfirmed the Company Board Recommendation, 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 and (iii) the withdrawal or rejection of such Acquisition Proposal and the reconfirmation of the Company Board Recommendation shall have been publicly announced by the Company. In addition, the Purchaser shall extend the Offer then scheduled Expiration Date for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the United States Securities and Exchange Commission (the “SEC”) or its staff or the New York Stock Exchange (“NYSE”).
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to Shares issuable upon the exercise of the Top-Up Option or Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), or the staff thereofPurchaser may, applicable to the Offer. In addition to the foregoing and excluded from any such limitationsin its sole discretion, Sub also may provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 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 pay for, all Shares that are validly tendered pursuant to the Offer 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) On 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 twenty four (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 acquisition 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, Parent and Sub the Purchaser shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (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 letter of transmittal and transmittal, the notice of guaranteed delivery, a form of summary advertisement and other ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Parent 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 provisions of the Exchange Act. Parent and Sub Purchaser 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 Lawthe Exchange Act. Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it such party 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 or as otherwise required by applicable Law. , and Parent and Sub further the Purchaser agree to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect theretocounsel.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Advanced Medical Optics Inc), Merger Agreement (Abbott Laboratories)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable, but in accordance with Section 8.1 and none no event later than five business days after the public announcement of the events described in any execution of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Sub the Purchaser shall, and the Parent shall cause Sub the Purchaser to, commence a tender offer (within the meaning "Offer") to purchase for cash all of Rule 14d-2 under the Securities Exchange Act issued and outstanding shares of 1934Common Stock (the "Shares"), as amended (together with the rules associated rights, if any, to purchase Series A participating Cumulative Preferred Stock, par value $.01 per share ("Series A Shares"; and regulations promulgated thereundertogether with the Shares, the “Exchange Act”)"Securities") at a price of not less than $11.625 per Security net to the seller in cash; it being understood that the Offer within ten will not apply to the 179,656 Shares (10or associated rights) business days following previously held by the date hereofTrust which are being returned to the Company and canceled as described in the third recital to this Agreement. The obligations of Sub the Purchaser and the Parent to consummate the Offer and to accept for payment and to pay for any Shares validly purchase the Securities tendered 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 the conditions set forth in Annex III A hereto. Subject The Purchaser shall not without the Company's prior written consent reduce the price per Security or the number of Securities sought to the prior satisfaction be purchased 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change modify the form of consideration in which any component to be received by holders of the Offer Price is payable, decrease the number of Shares sought Securities in the Offer, waive or change increase the condition (the "Minimum Condition Condition") set forth in clause (as defined in i) of the first sentence of Annex III A hereto), modify impose additional conditions to the Offer or amend any term of the conditions set forth Offer in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any a manner materially adverse to the holders of the Company Common Stock, impose any conditions Securities. Subject only 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 conditions 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, on the one handPurchaser shall, 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 Parent shall have become false or misleading in any material respect or as otherwise required by Law. 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 disseminated to holders of SharesPurchaser to, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to pay for 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Securities validly tendered and not withdrawn pursuant to the Offer as soon as legally permissible.
(b) As soon as practicable on the date the Offer is commenced, the Parent and that Sub is obligated the Purchaser will file with the Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule 14D-1 (together with all supplements or amendments thereto, and including all exhibits, the "Offer Documents"). The Parent and the Purchaser shall give the Company and its counsel a reasonable opportunity to accept for payment pursuant review the Offer Documents prior to the filing of the Offer and permitted Documents with the Commission or to accept for payment under applicable Law.the dissemination of the Offer Documents to the stockholders of the
Appears in 2 contracts
Sources: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1 and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events described conditions set forth in any of paragraphs (aii)(a) or - (bii)(g) of Annex III hereto have occurred I hereto, then as promptly as practicable after the date hereof (and be continuing in any event within eight (unless waived by Parent or Sub8) business days of the date of this Agreement), Merger Sub shall, and Parent shall cause Sub to, (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together the "Exchange Act")) an offer (the "Offer") to purchase any and all of the outstanding shares of Company Common Stock at a price per Share equal to the Per Share Amount, net to the seller in cash, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer Documents") with the rules Securities and regulations promulgated thereunderExchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the “Exchange Act”)) , and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer within ten (10) business days following the date hereofDocuments. The obligations of Sub Offer shall be subject only to accept for payment and to pay for any Shares the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration Expiration Date (as hereinafter defined) a number of Shares that, together with the Shares then owned by Parent and/or Merger Sub or any other subsidiary of Parent, represents at least a majority of the Offer Shares outstanding on a Fully-Diluted Basis (as it may be extended in accordance with requirements of this Section 1.1(a)hereinafter defined) shall be subject only (the "Minimum Condition") and to the other conditions set forth in Annex III I hereto. Subject to the prior satisfaction or waiver by Parent or Merger 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 to waive any of such conditions, the conditions to increase the Offer Price and to make any other changes change in the terms of or conditions to the Offer; provided, howeverprovided that without the prior written consent of the Company, that Sub shall not(i) the Minimum Condition may not be waived, and Parent shall cause Sub not to, decrease (ii) the condition to the Offer Price that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "▇▇▇ ▇▇▇") ▇▇ ▇▇▇er any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be waived, (iii) no change may be made that changes the form of consideration in which any component of to be paid, decreases the Offer Price is payable, decrease Per Share Amount or the number of Shares sought in the Offer, waive Offer or change imposes conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto or otherwise modify or amend I and (iv) no other change may be made to any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of the Company 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)Shares. Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate except as otherwise provided in 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 may1.01(a), without the consent of the Company, (i) Merger Sub shall have the right to extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any provided that such extension does not extend beyond the later of (x) July 31, 2003 and (y) the conditions set forth in Annex III hereto date that is 30 days after the date that the Company has complied with its obligations under Section 6.03 (other than the Minimum Condition"Outside Date") shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (iii) from time to timetime if, extend the Offer if at the scheduled or extended Expiration Date Date, any of the Minimum Condition is conditions to the Offer shall not satisfiedhave been satisfied or waived, for up to two periods of ten (10) business days per extension until such conditions are satisfied or waived or (iiiii) extend the Offer for any period required by any rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the staff thereof, thereof applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 period required by applicable law. The Offer shall remain open until 12:00 midnight on the aggregate Offer Price for those Shares date that have been validly tendered and not withdrawn pursuant to is twenty (20) business days after the commencement of the Offer and that (the "Expiration Date"), unless Merger Sub is obligated to accept shall have extended the period of time for payment pursuant to which the Offer is open pursuant to, and permitted to accept for payment under applicable Law.in accordance with, the terms of this Agreement or as may be
Appears in 2 contracts
Sources: Merger Agreement (Elite Information Group Inc), Merger Agreement (Elite Information Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VII and none of the events described set forth in any of paragraphs (a) or (b) of Annex III A hereto ------- shall have occurred and or be continuing (unless waived by Parent or Sub)existing, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, as promptly as practicable after the date hereof (but in no event later than the fifth business day after the public announcement of the terms of this Agreement), commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”")), an offer (the "Offer") ------------ ----- to purchase all of the outstanding shares of Company Common Stock (and associated Rights) at a price of 38.50 United States Dollars ($38.50) per share and associated Right (the "Offer Price"), net to the seller in cash, subject to ----------- reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer within ten (10) shall be the twentieth business days following day from and after the date hereofthe Offer is commenced (the "Initial Expiration Date"). The obligations obligation of Sub Purchaser to accept for payment payment, ----------------------- purchase and to pay for any Shares 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 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 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)the "Minimum Condition") shall be subject only to and (ii) the ----------------- other conditions set forth in Annex III A hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto; provided, Sub shallhowever, 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 Purchaser ------- -------- ------- expressly reserves the right to waive any of such conditions, the conditions to increase the Offer Price (other than the Minimum Condition) and to make any other changes change in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component conditions of the Offer Price is payablein its sole discretion, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition subject to Section 1.1(b).
(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, in each case in any manner adverse to the holders of the Company 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 (21b) 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 Without the prior written consent of the Company, neither Parent nor Purchaser will (i) decrease the price per share of Company Common Stock payable in the Offer, (such consent ii) decrease the number of shares of Company Common Stock sought in the Offer, (iii) change the form of consideration payable in the Offer, (iv) impose conditions to be authorized the Offer in addition to those set forth in Annex A, (v) except as provided below or required by any rule, regulation, ------- interpretation or position of the Securities and Exchange Commission (the "SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) --- otherwise amend or change any term or condition of the Offer in a manner materially adverse to the holders of shares of Company Board of Directors or a duly authorized committee thereof)Common Stock. Notwithstanding the foregoing, but subject anything in this Agreement 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 maycontrary, without the consent of the Company, (i) Purchaser shall have the right to extend the Offer beyond the initial expiration date Initial Expiration Date in the following events: (i) from time to time if, at any scheduled the Initial Expiration Date (or extended) extended expiration date of the Offer, if applicable), any of the conditions set forth in Annex III hereto to the Offer (other than the Minimum ConditionCondition to which this clause does not apply) shall not be have been satisfied or waived for up to two periods of not more than ten (10) business days per extensionwaived, until such conditions are satisfied or waived; (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, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the staff thereof, Staff thereof applicable to the Offer. In addition Offer or any period required by applicable law; (iii) if all conditions to the foregoing 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 excluded from any 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 limitationsextensions), Sub also may provide a “subsequent offering period” in accordance with 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 ActAct in connection with each such extension. In addition, Parent and Purchaser agree that Purchaser shall from time to time extend the Offer, if requested by the Com pany, if at the Initial Expiration Date (or any extended expiration date of the Offer, 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 clause (a) or clause (b) of Annex A shall have been waived or satisfied and the Minimum 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 reasonably capable of being satisfied prior to November 30, 2000. Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to the terms and conditions of this Agreement, Purchaser will, and Parent will cause Purchaser to, accept for payment, pur chase and pay for, in accordance with the terms of the Offer, all shares of Company Com mon Stock validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer.
(bc) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Sub Purchaser shall file or cause to be filed with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the "Schedule TO") with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”)Offer. The Schedule ----------- TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 as to form and content in all material respects with all the applicable provisions of the Exchange Actfederal securities laws and will contain the offer to purchase and form of the related letter of transmittal (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). --------------- Parent and Sub agree the Company each agrees 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 Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree 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 respect and to supplement the information provided by it specifically for use in the Schedule TO or as otherwise required by Lawthe 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. Parent and Sub further Purchaser agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and be disseminated to holders of Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is Offer Documents prior to their being filed with the SEC, and . Parent and Sub shall give due consideration Purchaser agree to all reasonable additions, deletions or modifications thereto suggested by provide to the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company with counsel any comments, whether written comments or oral, that other communications which Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination Staff of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretothereof.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc), Agreement and Plan of Merger (Novartis Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article IX hereof and none of the events described set forth in any of paragraphs clause (a) or (biii) of Annex III hereto the Tender Offer Conditions shall have occurred and be continuing occurred, as promptly as reasonably practicable (unless waived by Parent or Sub)but in no event later than March 26, Sub shall2008) after the date of this Agreement, and Parent shall cause Sub to, Purchaser to commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all outstanding shares of Seller Common Stock at the Offer within ten (10) business days following Price, and shall use its reasonable best efforts to consummate the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior Offer, subject 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 the terms and conditions set forth in Annex III heretohereof and thereof. Subject to the prior terms and conditions of this Agreement and to the satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretothe Tender Offer Conditions, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, consummate promptly after the Offer in accordance with its terms and expiration of the Offer, accept for payment and pay for (after giving effect to any required withholding Tax), all Shares shares of Seller Common Stock validly tendered pursuant to the Offer 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 time and date of acceptance for payment, the “Offer to PurchaseAcceptance Date”).
(b) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly Purchaser reserves the right to waive waive, in whole or in part, any of such conditions, to increase the Tender Offer Price and to make any other changes in Condition or modify the terms of the Offer; provided, however, that Sub without the prior written consent of Seller, Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, waive or change amend the Minimum Condition (as defined in Annex III I hereto), modify or amend any decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions set forth in Annex III hereto or otherwise modify to the Offer or amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of Seller Stockholders. The Offer shall remain open until 12:00 midnight, Boston, Massachusetts time, on the Company 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 twenty (2120) business days Business Days after the commencement (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) 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 ), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the succeeding sentence or as set forth below, in each case without the prior written consent may be required by applicable Laws or interpretations of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”)) or its staff, or in which event the staff thereof, applicable to term “Expiration Date” shall mean the latest time and date as the Offer. In addition to the foregoing and excluded from any such limitations, Sub also as so extended, may expire; provided, however, that Purchaser may provide a “subsequent offering period” period (and one or more extensions thereof) after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act.
. If at any Expiration Date, any of the 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 (b20) On the date Business Day offering period, then Purchaser shall extend such Expiration Date on one or more occasions for a total of commencement an additional thirty (30) calendar days; provided further that on any scheduled Expiration Date of the Offer, Parent and Sub shall file with (i) if the SEC, pursuant to Regulation M-A waiting period under the Exchange HSR Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect or under any material applicable foreign statutes or regulations applicable to the Offer (together with all amendmentsor the Merger shall have not expired or been terminated, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO Purchaser shall include, as exhibits, extend the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations; or (ii) if any of the OfferTender Offer Conditions set forth in paragraph (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 SEC earlier of (A) five (5) Business Days after the time such condition or its staff with respect 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 paragraph shall affect any termination rights of the parties in Article IX. Subject to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be provided to Sub promptly following the expiration terms of the Offer or and this Agreement and the satisfaction of all the Tender Offer Conditions as of any subsequent extension thereofExpiration Date, as applicable, Purchaser will accept for payment and pay for all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been shares of Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to promptly after such Expiration Date of the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 7.1 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III I hereto shall have occurred and be continuing (unless and shall not have been waived by Parent or the Acquisition Sub), then, within five (5) Business Days after the public announcement of the execution of this Agreement, Acquisition Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten to purchase for cash all Shares at the Offer Price, subject to (10A) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares there being validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance that number of Shares which, together with requirements the Shares purchasable under the Stock Purchase Agreement and the Shares then owned by Parent or Acquisition Sub on the date of this Section 1.1(aAgreement, represents at least seventy-five percent (75%) of the Shares outstanding on a fully-diluted basis, assuming the exercise of all options, warrants and rights with exercise prices of less than $1.60 per share and convertible securities outstanding on the Expiration Date (the "Minimum Condition"), and (B) shall be subject only to the satisfaction or waiver of the other conditions set forth in Annex I hereto (the Minimum Condition, together with the conditions set forth in Annex III hereto. I, collectively, the "Offer Conditions"); provided, however, that in the event that the failure of any Offer Condition to be satisfied was caused solely by any material breach by Parent or Acquisition Sub of this Agreement and such failure has been waived by the Company, Acquisition Sub shall be obligated to accept for payment and pay for Shares tendered pursuant to the Offer.
(b) Subject to the prior satisfaction or waiver by Parent or Acquisition Sub of conditions set forth in Annex III heretothe Offer Conditions, Acquisition Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and to accept for payment and pay for all Shares tendered pursuant to the Offer as soon as reasonably practicable after Acquisition Sub is legally permitted to do so under applicable law. The obligations of Acquisition Sub to commence the Offer and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn promptly following the acceptance of Shares for payment pursuant shall be subject to the OfferOffer Conditions. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains is subject to the terms set forth in this Agreement Agreement, including the Offer Conditions and shall reflect, as appropriate, the conditions other terms set forth in Annex III heretothis Agreement. If, on the initial scheduled expiration date of the Offer, which shall be no earlier than twenty (20) Business Days after the date the Offer is commenced, all conditions to the Offer will not have been satisfied or waived, Acquisition Sub may, from time to time, extend the expiration date or terminate the Offer. Parent and Acquisition Sub expressly reserves reserve the right to waive any of such conditionsOffer Condition, to increase the Offer Price and to make any other changes in the terms and conditions of the Offer; provided, howeverthat, that unless one or more of the conditions to the Offer and the Merger shall not have been met, then, without the prior written consent of the Company, Acquisition Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or Price, change the form of consideration payable in which any component of the Offer Price is payable(other than by adding consideration), decrease the number of Shares sought in the Offer, amend or waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any to less than a majority of the Shares outstanding on Expiration Date, impose additional conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of to the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer (except as set forth below) beyond a the date that is twenty-one twenty (2120) business days Business Days after commencement of the Offer or the last day of the last extension (as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “"Expiration Date”"), or amend any condition of the Offer in any manner materially adverse to the holders of the Shares; provided, however, that (x) except as set forth belowif on any then scheduled Expiration Date, all Offer Conditions shall not have been satisfied or waived, Acquisition Sub may, from time to time, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors its sole discretion, extend or a duly authorized committee thereof). Notwithstanding the foregoing, 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) further extend the Offer beyond for one or more periods as Acquisition Sub may determine until the initial expiration earlier of (1) the date ifon which all Offer Conditions shall have been satisfied or waived or (2) the Termination Date, and if on the then scheduled Expiration Date, there have not been tendered (along with Shares then owned by Parent or Acquisition Sub or purchasable under the Stock Purchase Agreement) at any scheduled (or extended) expiration least 90% of the Offeroutstanding Shares on a fully diluted basis, any assuming the exercise of all options, warrants and rights with exercise prices of less than $1.60 per share and convertible securities outstanding on the Expiration Date, Acquisition Sub may, in its sole discretion and notwithstanding the prior satisfaction of the conditions set forth in Annex III hereto (Offer Conditions, extend the Offer on one or more occasions for an aggregate period of not more than 10 Business Days, provided that during such extension or extensions Acquisition Sub shall waive the Offer Conditions other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitationsaddition, Acquisition Sub also may may, in its sole discretion, provide a “"subsequent offering period” " in accordance with Rule 14d-11 under the Exchange Act. In addition, Acquisition Sub may increase the Offer Price and extend the Offer to the extent required by any rule, regulation, interpretation or position of the SEC or the staff thereof or any period required by applicable law, in each case in its sole discretion and without the Company's consent.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Acquisition Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“"Regulation M-A”"), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “"Schedule TO”"). The Schedule TO shall includeinclude the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Acquisition Sub agree to take all commercially reasonable steps reasonably necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Parent and Acquisition Sub, 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 such information shall have become false or misleading in any material respect or as otherwise required by Lawlaw. Parent and Acquisition Sub further agree agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Acquisition Sub agree to provide the Company and its counsel with any comments, whether written or oral, that Parent, Acquisition Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such commentscomments by Parent or Acquisition Sub, as the case may be, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto.
(cd) On the terms and subject to the prior satisfaction or waiver of the Offer Conditions, Parent shall provide or cause to be provided to Sub promptly following Acquisition Sub, and deposited with the expiration of the Offer or any subsequent extension thereofPaying Agent referred to in Section 2.2 on a timely basis, as applicable, all funds necessary to promptly accept for payment, and to pay in full in cash the aggregate Offer Price for those for, any Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is Parent becomes obligated to accept for payment payment, and pay for, pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described 8.1, as promptly as practicable (but in any event not later than eight business days after the public announcement of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or SubPurchaser's intention to commence the Offer), Sub shall, and Parent shall will cause Sub to, Purchaser to 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"EXCHANGE ACT")), the “Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, net to the seller in cash (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 Agreement, "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 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, to consummate the Offer within ten (10) business days following the date hereof. The obligations of Sub and to accept for payment and to pay for any Shares validly tendered in the Offer 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 therewith will be subject to, and only to the to, those conditions set forth in Annex III hereto. 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 ANNEX A hereto (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 to waive any of such conditions"OFFER CONDITIONS"), to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 hereby incorporated herein by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Actreference.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 8.1, and none of subject to compliance in all material respects by the events described Company with its covenants in this Section 1.1 and Section 1.2, as promptly as practicable, and in any of paragraphs event within ten (a10) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)business days after the date hereof, Sub shall, and Parent Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) the Offer within ten to purchase for cash all Shares at the Offer Price, subject to (10i) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares there being validly tendered in the Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer (as it may be extended that number of Shares which, together with the Shares then beneficially owned by Parent or its Subsidiaries, represents at least a majority of the Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in accordance with requirements the election of directors or upon the approval of this Section 1.1(a)Agreement, in each case on a fully diluted basis (collectively, the “Minimum Condition”) shall be subject only to and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex III hereto. I. Subject to the prior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or Sub Purchaser of the other conditions and requirements set forth in Annex III heretoI, Sub shall, and Parent Purchaser shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered pursuant to the Offer as soon as practicable after Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn promptly following the acceptance of Shares for payment pursuant shall be subject to the Offer. Minimum Condition and the other conditions and requirements set forth in Annex I. 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 Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex III hereto. I. Neither Parent expressly reserves nor Purchaser may waive the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not toMinimum Condition, decrease the Offer Price or Price, change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, waive reduce the maximum number of Shares to be purchased in the Offer or change impose conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company 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 I 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)Company. Notwithstanding the foregoing, but subject (A) if, as of any scheduled expiration date of the Offer, all conditions to the parties’ respective Offer shall not have been satisfied or waived, Purchaser may, from time to time, in its sole discretion, extend the expiration date of the Offer for such period (not to exceed ten (10) business days on any single occasion) as Purchaser may determine, to a date that is no later than March 31, 2006, or such later date which is no later than the third (3rd) business day following the latest of (1) the date on which Parent’s and Purchaser’s rights of negotiation expire under Section 8.1(f), (2) any Recommendation Deadline and (3) the twentieth (20th) business day following receipt by Parent or Purchaser of a notice pursuant to terminate Section 8.1(b)(ii)(B); provided, that the failure of the Offer to be consummated, at the time of such extension, shall not (other than in circumstances described in clause (3)) be a result of Parent or Purchaser having failed to comply in any material respect with its covenants or agreements contained in this Agreement and (B) if applicable, Purchaser shall extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not less than three (3) or more than ten (10) business days, if necessary, in order to meet the objective that there be validly tendered, in accordance with Section 8.1, Sub shall, upon the written request terms of the Company Offer, prior to the expiration of such subsequent offering period, and not withdrawn a number of Shares which, together with Shares then beneficially owned by Parent, Purchaser and/or any other wholly-owned Subsidiary of Parent represents at least one business day before 90% of the then-then outstanding Shares on a fully diluted basis and (C) if, as of any scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the events described in paragraphs (c), (d) or
(e) of Annex I has occurred and is continuing, then, at the request of the Company (received prior to the then scheduled expiration date of the Offer), Purchaser shall extend the Offer, until 5:00 p.m. New York City time on the date that is the later of (1) the date Parent would otherwise be entitled to terminate this Agreement pursuant to Section 8.1(b)(ii) or Section 8.1(b)(iii), as applicable, and (2) the third (3rd) business day following the date on which the matters which gave rise to the events described in paragraphs (c), (d) or (e) of Annex I have been cured or waived by Purchaser such that the conditions in Annex I are then satisfied or waived (it being understood that Purchaser may effect such extension through a series of extensions of such duration(s) as Purchaser may determine); provided, that the Company shall not be entitled to require Parent to extend the Offer pursuant to this clause (C) on more than one occasion.
(i) If (A) the Company has not delivered a Notice of Acquisition Proposal, (B) the failure to achieve the Minimum Condition is not a result of the Company having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) the conditions and requirements of Annex I (other than the Minimum Condition) have been satisfied or, if not then satisfied, are reasonably capable of being satisfied before March 31, 2006, then, if at any scheduled expiration date of the Offer, the Minimum Condition shall not have been satisfied, at the request of the Company (received from time to time prior to the then scheduled expiration date of the Offer and confirmed in writing), Purchaser shall extend the Offer to a date requested by the Company (but no later than five (5) business days beyond the then scheduled expiration date of the Offer on any single occasion); provided, that in no event shall Purchaser be required to extend the expiration date of the Offer to any date later than March 31, 2006 pursuant to this Section 1.1(b)(i).
(ii) If (A) the Company delivers a Notice of Acquisition Proposal to Parent and (B) the Company provides Parent with a written request (a “Request”) that Purchaser extend the expiration date of the Offer (which Request may or may not be included in, and may be delivered later than, the Notice of Acquisition Proposal), then Purchaser shall extend the Offer, to such date as is necessary to assure that the Offer does not expire until fifteen (15) business days (such date as it may be extended pursuant to this Section 1.1(b)(ii), the “Recommendation Deadline”) from the date the Company gives (or gave) such Notice of Acquisition Proposal; provided, that (1) the Company may not deliver a Request on more than one occasion; and (2) if the Request was delivered on or prior to the twentieth (20th) business day following the date of this Agreement and, during the four (4) business day period ending on (and including) the date on which the Recommendation Deadline occurs, the Company delivers to Parent a Notice of Acquisition Proposal relating to an Acquisition Proposal from a Person or group that does not include any Person participating (other than solely as a source of debt financing) in the Acquisition Proposal as to which the prior Notice of Acquisition Proposal relates, then Purchaser shall, upon the request of the Company, extend the expiration date of the Offer to such date as is necessary to assure that the Offer does not expire until the fifth (5th) business day following receipt of such second Notice of Acquisition Proposal and the Recommendation Deadline shall automatically be extended to such fifth (5th) business day.
(iii) Parent and Purchaser further agree that (A) if at any one or more scheduled expiration dates of the Offer, any of the Regulatory Conditions have not been satisfied (or such conditions have been satisfied and the date of such satisfaction is after the third (3rd) business day preceding the date of expiration of the Offer (an “Abbreviated Expiration”)), but at such scheduled expiration date all of the other conditions to the Offer set forth in Annex III hereto I (other than the Minimum Condition) shall then be satisfied, or if not then satisfied, are either (1) reasonably capable of being satisfied or (2) unsatisfied (or not reasonably capable of being satisfied), as a result of a breach of this Agreement by Parent or Purchaser, then, so long as the failure of the Regulatory Conditions to be satisfied shall not be a result of a breach by the Company of its obligations under this Agreement, at the request of the Company (received prior to the then-scheduled expiration date of the Offer and confirmed in writing), Purchaser shall extend the expiration date from time to time, to a date that is no later than March 31, 2006 and (B) if at any one or more scheduled expiration dates of the Offer after March 31, 2006, any of the Antitrust Conditions has not been satisfied (or there has been an Abbreviated Expiration with respect to the Antitrust Conditions), but at such scheduled expiration date all of the other conditions to the Offer set forth in Annex I (other than the Minimum Condition) shall then be satisfied, or if not then satisfied, are either (1) reasonably capable of being satisfied or waived for up (2) unsatisfied (or not reasonably capable of being satisfied), as a result of a breach of this Agreement by Parent or Purchaser, then, so long as the failure of the Antitrust Conditions to two periods be satisfied shall not be a result of a breach by the Company of its obligations under this Agreement, at the request of the Company (received prior to the then-scheduled expiration date of the Offer and confirmed in writing), Purchaser shall extend the expiration date from time to time, to a date that is no later than September 14, 2006; provided, that in the case of clause (A) and (B) of this sentence, Purchaser shall not be required to extend the Offer by more than ten (10) business days per extensionon any single occasion or, in the case of an extension due to an Abbreviated Expiration, three (ii3) from time business days following the Abbreviated Expiration.
(iv) Without limiting the right of Parent and Purchaser to timeextend the Offer pursuant to Section 1.1(a), if at any one or more scheduled expiration dates of the Offer on or after March 31, 2006, any of the Antitrust Conditions has not been satisfied or waived (or there has been an Abbreviated Expiration with respect to the Antitrust Conditions), but on such date all of the other conditions to the Offer set forth in Annex I (other than the Minimum Condition) shall then be satisfied or waived, or if not then satisfied, are either (A) reasonably capable of being satisfied or (B) unsatisfied (or not reasonably capable of being satisfied) as a result of a breach of this Agreement by the Company or a failure of the condition set forth in clause (d) of Annex I, then, so long as the failure of the Antitrust Conditions to be satisfied shall not be a result of a breach by Parent or Purchaser of its obligations under this Agreement, Parent and Purchaser may, on one or more occasions, extend the expiration date of the Offer if at to a date that is no later than September 14, 2006; provided that Purchaser shall not extend the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of expiration date by more than ten (10) business days per on any single occasion (or, in the case of an extension or due to an Abbreviated Expiration, three (iii3) business days following the Abbreviated Expiration).
(v) Purchaser may (A) increase the Offer Price and extend the Offer for any period to the extent required by any ruleapplicable law in connection with such price increase and (B) subject to prior consultation with the Company, regulation or interpretation extend the expiration date of the United States Offer to the extent otherwise required by applicable law, in each case in their reasonable discretion and without the Company’s consent. Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8.1.
(c) As soon as practicable on the date the Offer is commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall includeinclude the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub Purchaser 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), and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Parent and SubPurchaser, 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 respect or as otherwise required by Lawapplicable law. Parent and Sub 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub Purchaser shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to Purchaser shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub Purchaser shall give due consideration to all reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect thereto.
(c) Parent shall provide or cause to be provided to Sub promptly following the expiration of counsel. If the Offer is terminated or any subsequent extension thereofwithdrawn by Purchaser, 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 or this Agreement is terminated prior to the Offer purchase of Shares in the Offer, Parent and that Sub is obligated Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent, acting on behalf of Parent and Purchaser, to accept for payment pursuant return all tendered Shares to the Offer and permitted to accept for payment under applicable Lawregistered holders thereof.
Appears in 2 contracts
Sources: Merger Agreement (Koch Industries Inc), Merger Agreement (Georgia Pacific Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and So long as none of the events described set forth in any of paragraphs clauses (a) or through (bg) of Annex III I hereto shall have occurred and be continuing (unless waived by Parent or Sub)exist, Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as 2 promptly as practicable after the date hereof, but in any event not later than December 18, 1997, the Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to such Shares, net to the seller in cash. The initial expiration date for the Offer shall be the 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 Exchange Act (the "Initial Expiration Date"). As promptly as practicable, the Purchaser shall 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 rules documents therein pursuant to which the Offer will be made, and regulations promulgated thereunderwith any supplements or amendments thereto, the “Exchange Act”"Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer within ten to Purchase (10the "Offer to Purchase") business days following which shall be mailed to the date hereofholders of Shares with respect to the Offer. The obligations obligation of Sub Parent and the Purchaser to accept for payment and to or pay for any Shares validly tendered and not withdrawn prior pursuant to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall will be subject only to the satisfaction or waiver of the conditions set forth in Annex III I hereto. Subject to Without 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the Offer; providedCompany, however, that Sub the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, (ii) decrease the number of Shares sought to be purchased in the Offer, waive or change the Minimum Condition Offer (except as defined otherwise set forth in Annex III heretoSection 1.01(b) hereof), modify or amend any of (iii) change the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition I, (iv) extend the expiration date of the Offer, in each case in any manner adverse to the holders Offer (except as required by applicable rules and regulations of the Company Common Stock, impose any conditions to SEC and except that Purchaser may in its discretion extend the expiration date of the Offer that are not set forth on Annex III heretofor up to 10 business days after the Initial Expiration Date, or and may extend the Offer beyond a date that is twenty-one thereafter for longer periods (21) business not to exceed 90 calendar 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement (unless, in the Company's sole discretion, the Company requests that the expiration date of the OfferOffer be further extended, Parent and Sub shall file with up to a maximum of 120 calendar days) from the SEC, pursuant to Regulation M-A under date of commencement in the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect event that any condition to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”is not satisfied or waived). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Impact Systems Inc /Ca/), Merger Agreement (Voith Sulzer Acquisition Corp)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1 and none the failure of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 the conditions set forth in Annex III I hereto. Subject , Parent and Purchaser shall, as promptly as practicable following the date hereof and in any event not later than March 20, 1998, commence their Offer to purchase the Shares at a price equal 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 OfferPurchase Price. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”" and, together with a letter of transmittal relating thereto, the "Offer Documents") which shall be subject solely to the condition that contains there be validly tendered and not withdrawn prior to the terms set forth in this Agreement expiration of the Offer that number of Shares which, when added to any Shares acquired pursuant to the Stock Purchase Agreements simultaneously with the acceptance of Shares pursuant to the Offer, represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex III heretoI hereto (including the expiration of applicable waiting periods under the HSR Act (as hereinafter defined)). For purposes of this Agreement, "fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding Options (as defined below). As soon as practicable, Parent expressly reserves and Purchaser shall file with the right Securities and Exchange Commission (the "SEC") a Schedule 14D-1 (which schedule, together with all amendments and supplements thereto, is hereinafter referred to waive 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 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 conditions, to increase comments or other communications. Without the Offer Price and to make any other changes in the terms prior written consent of the Offer; providedCompany, however, that Sub neither Parent nor Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price price per Share or change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought to be purchased in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify I, impose additional conditions to the Offer or amend any other term or condition of the Offer, in each case Offer in any manner materially adverse to the holders of the Company Common Stock, impose any conditions Shares. Subject 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 terms of the Offer and this Agreement and the satisfaction or waiver of all the last extension (conditions of the Offer set forth in Annex I hereto as permitted in accordance with this Section 1.1), if any, of any expiration date of the Offer, whichever is later (Parent and/or Purchaser will accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the “Expiration Date”) except Offer as set forth below, in each case without the prior written consent soon as practicable after such expiration date of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)Offer. Notwithstanding the foregoing, 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 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 the initial then scheduled expiration date if, at any (the initial scheduled (or extended) expiration date being 20 business days following commencement of the Offer), if at the then scheduled expiration date of the Offer any of the conditions set forth in Annex III hereto (other than to Purchaser's obligation to accept for payment and pay for the Minimum Condition) Shares shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionwaived, until such time as such conditions are satisfied or waived, (ii) from time to time, extend increase 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) Purchase Price and extend the Offer for any period required by any rule, regulation regulation, interpretation or interpretation provision of the United States Securities and Exchange Commission (“SEC”), SEC or the staff thereof, thereof applicable to the Offer. In addition Offer and (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered and not withdrawn pursuant to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under Offer at least 90% of the Exchange Actoutstanding Shares.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 the provisions of applicable federal securities laws and, on the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be date filed with the SEC andand on the date first published, subject sent or given to the Company’s compliance with Section 1.2(c)'s stockholders, disseminated shall not contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements made therein, in each case as and 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 extent required by applicable LawCompany in writing for inclusion in the Offer Documents. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. and Parent and Sub 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 Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none 8.1, the Purchaser (or one or more other direct or indirect wholly-owned subsidiaries of the events described in any of paragraphs (aParent) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, not later than one business day after execution of this Agreement, publicly announce the transactions contemplated hereby, and Parent shall cause Sub tonot later than five business days after execution of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”")), an offer to purchase all Shares at a price of $10.00 per Share (the "Per Share Price"), net to the seller in cash (the "Offer," which term shall include any amendments to such Offer not prohibited by this Agreement) and, subject to a minimum of not less than a majority of the outstanding Shares (on a fully-diluted basis excluding Out of the Money Options (as defined below)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares being validly tendered 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)the "Minimum Condition") shall be subject only to and the further conditions set forth in this Agreement and Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub I of conditions set forth in Annex III heretothis Agreement, 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 purchased pursuant to the Offer. The initial expiration date of the Offer shall be May 18, 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 any Shares that the Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer, and shall cause the Purchaser and the Merger Sub to fulfill all of their respective other obligations under this Agreement. The Offer shall be made by means of an offer to purchase (containing the “Offer to Purchase”) that contains Minimum Condition and the terms further conditions set forth in this Agreement and Annex I. Simultaneously with the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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 commencement of the Offer, in each case in any manner adverse to the holders of Purchaser shall file with the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b"Commission") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements theretohereto, the “Offer Documents”"Schedule 14D-1"). Subject , which shall have been provided to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of such that the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review promptly comment thereon. Parent, the Purchaser and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Merger Sub agree to provide the Company with and its counsel any comments, whether written or oral, that comments the Parent, the Purchaser or the Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC Commission or its staff with respect to the Offer Documents, Schedule 14D-1 promptly upon after the receipt of such comments. For purposes of this Agreement, and "Out of the Money Options" shall mean any written option, warrant or oral responses thereto, and other contractual right to purchase shares of the Common Stock of the Company shall 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 consult with Parent, Sub modify the terms and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be provided to Sub promptly following the expiration conditions of the Offer or any subsequent extension thereoffrom time to time, as applicableexcept that, all funds necessary to promptly pay in full in cash without the aggregate Offer Price for those Shares that have been validly tendered and prior written approval of the Company, the Purchaser shall not withdrawn pursuant to amend the Offer and that Sub is obligated (i) to accept for payment reduce the cash price per Share to be paid pursuant thereto, (ii) to reduce the Offer and permitted number of Shares to accept for payment under applicable Law.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
Appears in 2 contracts
Sources: Merger Agreement (S Acquisition Corp), Merger Agreement (Simulation Sciences Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (but in accordance with Section 8.1 and none no event later than five business days from the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub shall, and Parent the Purchaser shall cause Sub to, 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”")) an offer (the Offer within ten "Offer") to purchase for cash any and all of the issued and outstanding shares of Common Stock, par value $.10 per share (10referred to herein as either the "Shares" or "Company Common Stock"), of the Company (excluding the related Common Stock Purchase Rights (the "Rights") business days following issued pursuant to the date hereof. Rights Agreement between the Company and The obligations Bank of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn New York, dated as of July 29, 1996 (the "Rights Agreement") which will be redeemed 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 the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms consummation of the Offer; provided), howeverat a price of $21.75 per Share, that Sub shall notnet to the seller in cash (such price, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought such higher price per Share as may be paid in the Offer, waive or change being referred to herein as the Minimum Condition "Offer Price"). The Purchaser shall, on
(b) As soon as defined in Annex III hereto), modify or amend any of practicable on the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to date the Offer that are not set forth on Annex III heretois commenced, or extend Parent and 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 Purchaser shall file 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO shall 14D-1 will include, as exhibits, the Offer to Purchase and a form of 4 letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 the provisions of applicable federal securities laws and, on the Exchange Actdate 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 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 in writing for inclusion in the Offer Documents. Each of Parent and Sub agree the Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 and misleading in any material respect or as otherwise required by Law. Parent and Sub the Purchaser further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the initial Schedule TO and any amendment thereto 14D-1 before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel in writing with any comments, whether written comments or oral, other communications that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or other communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Healthsource Inc), Merger Agreement (Cigna Corp)
The Offer. (a) Section 1.1.1 Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article 7 hereof and none of the events described set forth in any of paragraphs Annex I hereto (athe "Tender Offer Conditions") or (b) of Annex III hereto shall have occurred and be continuing (unless waived by Parent or Sub)occurred, Sub shall, and Parent shall cause Sub to, the Purchaser to (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the “"Exchange Act”")) the Offer as promptly as practicable (and in any event within ten (10) five business days following after the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(aAgreement)) shall be subject only to the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase all outstanding Shares at the Offer Price and to make any other changes in the terms of the Offer; providedPrice, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of B) after affording the Company Common Stocka reasonable opportunity to review and comment thereon, 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO and all other necessary documents with respect to the Securities and Exchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and or supplements thereto, the “"Offer Documents”). Subject ") and (C) use reasonable efforts to Section 5.2, consummate 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andOffer, subject to the Company’s compliance with Section 1.2(c), disseminated to holders terms and conditions thereof. Each of Shares, in each case as and to the extent required by applicable Law. Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. Parent respect, and Sub the Purchaser further agree 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 as and to the extent required by applicable Lawfederal securities laws. The Company shall be given a reasonable opportunity obligation of the Purchaser to review and comment on the Schedule TO and accept for payment or pay for any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior Shares tendered pursuant to the expiration Offer will be subject only to the satisfaction of the Tender Offer Conditions.
Section 1.1.2 Without the prior written consent of the Company, the Purchaser shall not decrease the Offer Price or termination change the form of consideration payable in the Offer, from decrease the SEC or its staff with respect number of Shares sought to be purchased in the Offer, waive the Minimum Condition, impose additional conditions to the Offer Documentsor amend any other term of the Offer in any manner adverse to the holders of Shares. The Offer shall remain open until the date that is 20 business days (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer (the "Expiration Date"), promptly upon receipt unless the Purchaser shall have extended the period of such commentstime for which the Offer is open pursuant to, and in accordance with, the terms of this Agreement 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. If, at any written or oral responses theretoExpiration Date, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 Tender Offer Conditions are not satisfied or waived by the Purchaser, the Purchaser may, but shall provide or cause not be required to, extend the Offer; provided, however, if the Offer shall not have been consummated at the Expiration Date due to be provided the failure to Sub promptly following satisfy the condition to the Offer relating to the expiration of the waiting period under the HSR Act or under any applicable foreign antitrust statutes or regulations, Parent will, at the request of the Company, cause the Purchaser to extend the Expiration Date for one or more periods (not in excess of ten business days each) but in no event later than December 23, 2002. Subject to the terms of the Offer or and this Agreement and the satisfaction of all the Tender Offer Conditions as of any subsequent extension thereofExpiration Date, as applicable, the Purchaser will accept for payment and pay for all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not validly withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to as soon as practicable after such Expiration Date. The Purchaser may, but shall not be required to, provide a subsequent offering period after the Offer and permitted to accept for payment Expiration Date, in accordance with Rule 14d-11 under applicable Lawthe Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Innoveda Inc), Merger Agreement (Mentor Graphics Corp)
The Offer. (a) Provided that As promptly as practicable (but in no event later than two (2) business days (as defined in Rule 14d-1 promulgated under the Exchange Act) ("Business Days") after the public announcement of the execution hereof), the Purchaser and Parent shall amend the Offer to reflect the transactions contemplated by this Agreement shall and certain other matters which are not have been terminated inconsistent with the terms of this Agreement. The Purchaser may designate another direct or indirect subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(c) under the Exchange Act) in accordance with Section 8.1 and none the Offer, may assign all or any part of its rights under this Agreement (including the right to be a constituent corporation in the Merger) to such subsidiary or may convert to a corporation pursuant to the provisions of the events described Delaware General Corporation Law (the "DGCL"), in any of paragraphs (a) which case references herein to Purchaser shall be deemed to apply to such subsidiary or (b) such corporation and such subsidiary or corporation shall be made a party signatory hereto, in each case, unless any such action would require any filing, permit, authorization, consent or approval as may be required under, and other applicable requirements of, the HSR Act or any similar statute or regulation. The Company shall not tender Shares held by it or by any of Annex III hereto have occurred and be continuing (unless waived by Parent or Subits subsidiaries pursuant to the Offer. Subject to Section 1.1(b), Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within on the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules terms and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 the prior satisfaction or waiver of the conditions set forth in Annex III A hereto. 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 as soon as it is legally permitted to do so under applicable law.
(b) As promptly as practicable (but in no event later than two (2) Business Days after the public announcement of the execution hereof), Parent and not withdrawn promptly following the acceptance of Shares for payment pursuant Purchaser shall amend the Offer to Purchase (as so amended, the Offer. The Offer shall be made by means of an offer to purchase (the “"Amended Offer to Purchase”") that contains to contain the terms set forth in this Agreement and the conditions set forth in Annex III A hereto. Parent expressly reserves , and the right Amended Offer to waive any of such conditions, Purchase shall reflect an increase in the per Share price to increase paid in the Offer Price to $9.50 per Share and provide for an expiration date (as such date may be extended in accordance with the provisions of this Section 1.1(b), the "Expiration Date"), of ten (10) Business Days from the date the Amended Offer to make any other changes in the terms Purchase is first disseminated to security holders of the Offer; provided, however, that Sub Company. The Purchaser and Parent shall cause the Amended Offer to Purchase to be disseminated to the security holders of the Company within two (2) Business Days after the date of this Agreement. The Purchaser shall not, and Parent shall cause Sub the Purchaser not to, decrease the Offer Price or change the form of consideration to be paid in which any component of the Offer Price is payable, or decrease the number of Shares sought to be purchased in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions to the Offer set forth in Annex III hereto A or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not other than those set forth on in 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 belowA, in each case case, without the prior written consent of the Company (such consent to be authorized by Special Committee, which the Company Board of Directors or a duly authorized committee thereof)Special Committee may withhold in its sole discretion. Notwithstanding the foregoing, 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) the Purchaser shall extend the Offer beyond the initial expiration date if, at any scheduled (or extendedA) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the staff thereof, thereof applicable to the Offer. In addition Offer or any period required by applicable law, and (B) in ten (10) Business Day increments, up to the foregoing thirtieth (30th) Business Day after the date the Amended Offer to Purchase is first disseminated to security holders, if on the then current Expiration Date, any condition to the Offer shall not have been satisfied or waived; provided, however, that the Purchaser shall not so extend such then current Expiration Date if so directed by the Special Committee, and excluded (ii) notwithstanding the foregoing, the Purchaser may from time to time, without the consent of the Special Committee, extend the Offer (A) if, on the then current Expiration Date, any condition to the Offer shall not have been satisfied or waived, for the shortest period of time that Purchaser reasonably believes is necessary to satisfy such limitationscondition, Sub also may provide such period not to exceed ten (10) Business Days, provided, that neither the Purchaser nor Parent shall be in material breach of any of their respective obligations under this Agreement, (B) providing for a “"subsequent offering period” " not to exceed twenty (20) Business Days to the extent permitted under, and in accordance with compliance with, Rule 14d-11 promulgated under the Exchange Act, or (C) for an aggregate period not to exceed five (5) Business Days, if all of the conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn (when added to (x) all shares of Class A Common Stock owned by Parent, Purchaser and any other director or indirect subsidiary of Parent, and (y) all shares of Class A Common Stock that are issuable upon conversion of the shares of Class B common stock, par value $.01 per share, of the Company owned by Parent, Purchaser and any other direct or indirect subsidiary of Parent (the "Class B Common Stock," and, together with the Class A Common Stock, the "Company Common Stock")) is less than 90% of the number of shares of Class A Common Stock that would be then outstanding assuming the conversion of such Class B Common Stock.
(bc) On the date of commencement of the OfferOffer to Purchase is amended, Parent and Sub the Purchaser shall file with the SECSEC (i) an amended Schedule TO (together with all amendments and supplements thereto and including the exhibits thereto, pursuant the "Schedule TO/A") with respect to Regulation M-A the amended Offer, and (ii) an amended Rule 13e-3 Transaction Statement on Schedule 13E-3 promulgated under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule 13E-3/A") which shall be filed as a part of the Schedule TO”). /A. The Schedule TO TO/A shall includecontain or shall incorporate by reference, as exhibitsamong other things, the Amended Offer to Purchase and a an amended form of letter of transmittal (the Schedule TO/A, the Amended Offer to Purchase, the related letter of transmittal and summary advertisement (collectivelythe Schedule 13E-3/A, together with any amendments and supplements thereto, collectively, 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 shall comply in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to the Company's projections set forth in the Offer to Purchase or information regarding the Company in the Offer Documents which was previously included in any SEC Document (as defined herein) filed by the Company and not superseded by a later SEC Document filed by the Company as of the date of inclusion. Each of Parent and Sub agree to the Purchaser shall further take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and shall cause the Offer Documents to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and Sub, on the one handPurchaser shall promptly correct, and the CompanyCompany agrees to notify the Purchaser promptly as to, on the other hand, agree to promptly correct any information provided by it for use regarding any of them respectively in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect or as otherwise required by Law. Parent and Sub the Purchaser further agree to 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 Lawfederal securities laws. The Company and its counsel, and the Special Committee and its counsel, shall be given a reasonable opportunity to review and comment on upon the Schedule TO TO/A (and shall provide any amendment thereto before it is filed comments thereon as soon as practicable) prior to the filing thereof with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent shall, and Sub agree to shall cause the Purchaser to, provide the Company and its counsel, and the Special Committee and its counsel, in writing with any comments, whether written comments or oral, other communications that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or other communications, and Parent with copies of any written responses and Sub shall give due consideration to all reasonable views and comments telephonic notification of the Company and its legal counsel with respect theretoany verbal responses by Parent, Purchaser or their counsel.
(cd) Parent shall provide or cause to be provided to Sub promptly following the expiration Purchaser on a timely basis all 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 purchase any Shares that have been validly tendered and not withdrawn Purchaser becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Delco Remy International Inc), Merger Agreement (Citigroup Inc)
The Offer. (a) Provided that Subject to the terms and conditions of this Agreement shall not have been terminated Agreement, as promptly as practicable (but in accordance with Section 8.1 and none no event later than five business days after the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub shall, and Parent the Purchaser shall cause Sub to, 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”")) the Offer within ten to purchase for cash all of the issued and outstanding Shares, at a price of $13.50 per Share, net to the seller in cash (10) business days following such price, or such higher price per Share as may be paid in the date hereofOffer, being referred to herein as the "Offer Price"). The obligations of Sub Offer shall be subject to accept for payment and to pay for any Shares there being validly tendered and not withdrawn prior to the expiration of the Offer, at least a majority of the Shares outstanding on a fully diluted basis as of the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)the "Minimum Condition") shall be subject only and to the other conditions set forth in Annex III heretoA hereto (including the Minimum Condition, herein referred to as the "Offer Conditions"). Subject The Purchaser shall, subject to the terms of this Agreement, including the prior satisfaction or waiver by Parent or Sub (except that the Minimum Condition may not be waived without the consent of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Company) of the Offer in accordance with its terms and Conditions, accept for payment and pay for all any Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer as soon as possible after the expiration thereof. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains containing the Offer terms set forth in this Agreement and the conditions set forth in Annex III heretoAgreement. Parent The Purchaser expressly reserves the right right, in its sole discretion, to waive any of such conditions, to increase the Offer Price 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 Sub the Purchaser shall not, not amend or waive the Minimum Condition and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offersought, waive or change the Minimum Condition (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, in each case Offer in any manner adverse to the holders of the Company 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 Shares 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, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub Purchaser shall, upon and Parent agrees to cause the written request of the Company at least one business day before the then-scheduled expiration datePurchaser to, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for time up to two May 10, 1999 for one or more periods of not more than ten (10) 10 business days per extensiondays, (ii) from time to timeor, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfiedlonger, 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, interpretation or interpretation position of the United States Securities and Exchange Commission (“the "SEC”), ") or the staff thereof, thereof applicable to the Offer, if at the initial expiration date of the Offer, or any extension thereof, any condition to the Offer (other than the Minimum Condition) is not satisfied or waived. In addition addition, the Offer Price may be increased and the Offer may be extended to the foregoing extent required by law in connection with such increase in each case without the consent of the Company. Subject to the foregoing, it is agreed that the Offer Conditions are for the benefit of the Purchaser and excluded from may be asserted by the Purchaser regardless of the circumstances giving rise to any such limitationscondition (including any action or inaction by the Purchaser or Parent not inconsistent with the terms hereof) or, Sub also except with respect to the Minimum Condition, may provide a “subsequent offering period” be waived by the Purchaser, in accordance with Rule 14d-11 under the Exchange Actwhole or in part at any time and from time to time, in its sole discretion.
(b) On As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub the Purchaser shall file with the Securities and Exchange Commission (the "SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO shall 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and Sub agree the Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 and misleading in any material respect or as otherwise required by Law. Parent and Sub the Purchaser further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the initial Schedule TO and any amendment thereto 14D-1 before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel in writing with any comments, whether written comments or oral, other communications that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or other communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Aydin Corp), Merger Agreement (Aydin Corp)
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Section 8.1 its terms and provided that none of the events described set forth in any of paragraphs clause (a) or (biii)(a) of Annex III hereto A shall have occurred and be continuing subject to there being no Order enjoining, restraining or otherwise prohibiting the commencement of the 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 (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub Purchaser to, ) 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”)) the Offer within as promptly as reasonably practicable, but no later than ten (10) business days following (commencing with the first business day after the date of this Agreement), after the date hereof. Following such launch, each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof.
(b) The obligations obligation of Sub Purchaser to accept for payment payment, purchase and to pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (x) the condition (the “Minimum Condition”) that at least that number of Company Shares validly tendered and not withdrawn prior to the expiration date of the Offer (as it may be extended in accordance with requirements other than Company Shares tendered by guaranteed delivery where actual delivery has not occurred), when added to any Company Shares already owned by Parent or any of this Section 1.1(a)its controlled subsidiaries, if any, equal a majority of the sum of the then outstanding Company Shares plus (without duplication) shall be subject only a number equal to the number of Company Shares issuable upon the vesting (including vesting solely as a result of the 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 (including then outstanding Company Stock Options and Company RSUs, assuming the effectiveness thereof occurred on the Expiration Date), in each case, with an exercise or conversion price below the Per Share Amount and (y) the other conditions set forth in Annex III heretoA hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in Section 2.1(h)), changes the form of consideration payable in the Offer, adds to the conditions to the Offer, decreases the number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of this Section 2.1 or modifies or amends any condition to the Offer in any manner that broadens such conditions or is adverse to the holders of Company Shares.
(c) Subject to the 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 foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 9.1, (i) Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the Nasdaq Stock Market 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, any Tender Offer Condition is not satisfied and 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 events set forth in clause (iii)(a) of Annex A shall have occurred on or before the 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 initial 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 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 9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of such 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 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 conditions of this Agreement, Purchaser or Parent on Purchaser’s behalf shall accept for payment and pay for all Company Shares validly tendered and not withdrawn promptly following the acceptance expiration of Shares the Offer; provided, however, that without the prior written consent of the Company, Purchaser shall not accept for payment pursuant or pay for any Company Shares if, as a result, Purchaser would acquire less than the number of Company Shares necessary to satisfy the Minimum Condition. 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 satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(g) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser 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. The Offer Schedule TO shall be made contain or shall incorporate by means of reference an offer to purchase (the “Offer to Purchase”) that contains and form of the terms set forth in this Agreement related letter of transmittal and the conditions set forth in Annex III hereto. Parent expressly reserves the right any other ancillary documents pursuant to waive any of such conditions, to increase which the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 will be made (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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all exhibits, supplements and amendments and supplements thereto, being referred to herein collectively as 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially Purchaser shall use its reasonable steps necessary best efforts 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, Company Shares in each case as and all material respects to the extent required by applicable Lawfederal securities laws. Parent and SubPurchaser 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. Parent, on the one hand, Purchaser and the Company, on the other hand, Company 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 or as otherwise required by Law. respect, and Parent and Sub Purchaser further agree to take all steps necessary 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 Lawfederal securities laws. The Company shall be given 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 a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub Purchaser shall give due reasonable and good faith consideration to all reasonable additions, deletions or modifications thereto suggested any comments made by the Company and its legal counsel. In addition, Parent and Sub Purchaser agree to (i) provide the Company and its counsel in writing with any comments, whether written or oral, that comments Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer DocumentsDocuments promptly after the receipt 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 upon 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 responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses response to such comments or communications, and Parent and Sub shall give due consideration any proposed amendment to all reasonable views and comments of the Company and its legal counsel Offer Documents prior to the filing thereof with respect theretothe SEC.
(ch) 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 provide be permitted to extend the Offer for one (1) or cause 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 provided cured; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to Sub promptly following extend the expiration Offer pursuant to and in accordance with this Section 2.1(i), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer or any subsequent extension thereofConditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, as applicable, all funds necessary to promptly pay which shall remain in full in cash the aggregate Offer Price for those Shares that have been validly tendered force and not withdrawn effect) and its right to terminate this Agreement pursuant to the Offer and that Sub is obligated to accept for payment pursuant 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 under applicable Law(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 in breach of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Vitesse Semiconductor Corp), Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that Each of the Company and the Parent shall publicly announce the execution of this Agreement promptly following its execution, and shall not have been terminated in accordance cooperate with Section 8.1 and none the timing of such announcements consistent with Company's obligations as a reporting company under the events described in any Securities Exchange Act of paragraphs ▇▇▇▇ (a) or ▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇").
(b) of Annex III hereto Provided that nothing shall have occurred and be continuing (unless waived by Parent or Sub)that has resulted in a failure to satisfy any of the conditions set forth in Annex I to this Agreement, not later than five business days after execution of this 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 Act) an offer to purchase all Shares at a price of 1934$33.00 per Share, as amended net to the selling stockholder in cash (the "Offer," which term shall include any amendments to such Offer not prohibited by this Agreement). The obligation to consummate the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn a number of Shares that, together with the rules and regulations promulgated thereunderShares then beneficially owned by Parent, represents at least a majority of the “Exchange Act”)Shares outstanding on a fully diluted basis (the "Minimum Condition") the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 the other conditions set forth in Annex III hereto. Subject I 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 Offerthis Agreement. The Offer shall be made by means of an offer to purchase (containing the “Offer to Purchase”) that contains the terms set forth in this Agreement Minimum Condition and the further conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase I. Merger Sub hereby covenants and agrees that it shall hold the Offer Price and to make any other changes in open for not less than 20 business days. Simultaneously with the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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 commencement of the Offer, in each case in any manner adverse to Merger Sub shall file with the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1, as amended and supplemented, with respect to the Offer (together the "Schedule 14D-1") and the related Letter of Transmittal, as amended or supplemented, (collectively with all amendmentsthe Schedule 14D-1 the "Offer Documents") provided that prior to the filing of the Offer Documents, supplements Merger Sub shall have afforded the Company's counsel with a reasonable opportunity to review and exhibits thereto, make comments with respect to the “Schedule TO”)Offer Documents. The Schedule TO shall include, as exhibits, Parent agrees to provide the Offer to Purchase Company and a form of letter of transmittal and summary advertisement (collectively, together its counsel with any amendments and supplements thereto, comments that the “Offer Documents”). Subject Parent or its counsel may receive from the SEC or its staff with respect to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents promptly after receipt thereof. Each of the recommendation Parent, Company 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 provisions of the Exchange Act. Parent and Merger 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 Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to 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 or as otherwise required by Law. Parent and Merger Sub further agree agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause and Merger Sub expressly reserve the right to be provided to Sub promptly following the expiration waive any 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 conditions to the Offer and that Sub is obligated to accept for payment modify the terms 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 conditions set forth in paragraphs (a)(ii), (a)(iii) or (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 permitted Merger Sub shall extend the expiration date of the Offer in increments of not less than five business days; provided that Parent and Merger Sub shall not be required to accept for payment under applicable Lawextend the expiration date of the 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 As promptly as practicable (but in any event no later than the tenth (10th) business day after the initial public announcement of the execution of this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent the Company) Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer (the "Offer") to purchase for cash all shares of the issued and outstanding Common Stock, par value $.001 per share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company, at a purchase price per Share of $4.3545 net to the seller in cash (such price per Share, or such higher price per Share, if any, as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which, together with the rules 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 regulations promulgated thereunder, to the “Exchange Act”)) the Offer within ten (10) business days following the date hereofother conditions set forth in Annex A hereto. The obligations of Sub Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex III A hereto. 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 containing the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions set forth in Annex III A hereto. Parent Purchaser expressly reserves the right to waive amend any of such conditions, to increase the Offer Price and to make any other changes in the terms and conditions of the Offer; provided, however, provided that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 of the Company or a duly authorized committee thereof) Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Price or decrease the number of Shares sought, change the form of consideration to be paid pursuant to the Offer, impose conditions to the Offer in addition to those set forth in Annex A hereto, or amend any other term or condition of the Offer in any manner adverse to the holders of the Shares or, except as provided below in this Section 1.1(a), extend the expiration date of the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Offer conditions as of any expiration date, Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is legally permitted to do so by applicable law. Notwithstanding the foregoing, but subject Purchaser shall be entitled to extend the Offer, without the consent of the Company, if at the initial expiration of the Offer, which will be 20 business days following commencement of the Offer, or any extension thereof, any condition to the parties’ respective rights Offer is not satisfied or waived, and at the Company's request, Purchaser shall extend the Offer from time to terminate 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 in accordance with Agreement. Any extension of the Offer pursuant to this Section 8.11.1(a) shall not, Sub shall, upon without the written request consent of the Company at least one business day before Company, exceed the then-scheduled expiration datenumber of days that Purchaser reasonably believes will be necessary so that the Offer conditions will be satisfied. In addition, and Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial any then scheduled expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 applicable rules, regulations, interpretations or positions of the SEC or the staff thereof applicable to the Offer or for any ruleperiod 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, regulation or interpretation 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 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”"), or which subsequent offering period shall not exceed 20 business days. In addition, the staff thereof, applicable Offer Price may be increased and the Offer may be extended to the Offer. In addition to extent required by law in connection with such increase in each case without the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under consent of the Exchange ActCompany.
(b) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”"). The Schedule TO shall will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"). Subject to Section 5.2, Parent and Purchaser represent that 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 the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent and Sub agree Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. and each of Parent and Sub Purchaser further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel in writing with any comments, whether written comments or oral, other communications that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or other communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Wolters Kluwer Us Corp)
The Offer. SECTION 1.1 The Offer
(a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described set forth in any Annex A hereto shall have occurred, as promptly as practicable, but in no event later than five business days after the public announcement of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived the execution hereof by Parent or Sub)the parties, Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities and Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”")) an offer to purchase (the "Offer") for cash any and all of the Company's issued and outstanding shares of common stock, par value $.01 per share (the "Shares"), at a price of $5.40 per share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer within ten (10) business days following the date hereofPrice"). The obligations obligation of Sub Parent to accept for payment and to pay for any Shares validly tendered 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 the conditions set forth in Annex III A hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and .
(b) Parent shall cause Sub to, consummate not decrease the Offer Price, change the form of consideration payable in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance Offer, decrease the number of Shares for payment sought pursuant to the Offer. The Offer shall be made by means of an offer , add additional conditions 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 to waive any of such conditionsOffer, to increase the Offer Price and to or make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component conditions of the Offer Price is payable, decrease the number which are otherwise materially adverse to holders of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 acting through the Company Board of Directors or a duly authorized committee thereofSpecial Committee, as defined in Section 1.2(a) below). Notwithstanding the foregoing, but subject Subject to the parties’ respective rights terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) business days from the date the Offer is commenced; provided, however, that without the Special Committee's consent, Parent may (i) from time to terminate this Agreement in accordance with Section 8.1time extend the Offer, Sub shall, upon if at the written request scheduled expiration date of the Company at least one business day before the then-scheduled expiration date, and may, without the consent Offer any of the Companyconditions to the Offer shall not have been satisfied or waived, (iii) extend the offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer beyond the initial expiration date if, at for any scheduled (reason on one or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived more occasions for up to two periods an aggregate period of not more than ten (10) business days per extension, beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence. In addition, if at any scheduled expiration date of the Offer any of the conditions of the Offer have not been satisfied or waived by Parent, but are capable of being satisfied in the reasonable, good faith judgment of Parent, then, on the written request of the Company (acting through the Special Committee), Parent shall 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) time extend the Offer for any period required by any rule, regulation or interpretation up to twenty (20) business days from the then- scheduled expiration date of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer Offer, and a Transaction Statement on Schedule 13E-3 (together with all amendments, amendments and supplements thereto and including all exhibits thereto, the “"Schedule TO”13E-3"). The Schedule TO 14D-1 shall include, contain as exhibitsan exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Sub agree that the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement all amendments or supplements thereto (collectively, which together with any amendments and supplements thereto, constitute 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 Schedule 13E-3, shall comply in all material respects with all applicable provisions of the Exchange ActAct and the rules and regulations thereunder and other applicable laws. Parent The Company and Sub agree its counsel, and the Special Committee and its counsel, shall be given an opportunity to take all commercially reasonable steps necessary to cause review the Offer Documents to be filed with the SEC and, subject prior 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed filing thereof with the SEC, and Parent and Sub shall give due consideration to 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 and its counsel in writing with any comments, whether written or oral, that comments Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Ast Research Inc /De/), Merger Agreement (Samsung Electronics Co LTD /Fi)
The Offer. (a) Provided that So long as this Agreement agreement shall not have been terminated in accordance with Section 8.1 8.01 and none of the events described set forth in any of paragraphs Annex I hereto (aas hereinafter provided) or (b) of Annex III hereto shall have occurred and be continuing (unless waived by Parent or Sub)exist, Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”")) as promptly as practicable after the Offer within ten (10) date hereof, but in any event not later than the fifth business days day following the date hereof, the Offer for all outstanding Shares at the Share Offer Price applicable to such Shares, net to the seller in cash in accordance with this Agreement. The obligations initial expiration date for the Offer shall be the twentieth business day from and after the date the Offer is commenced, including the date of Sub commencement as the first business day in accordance with Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). As promptly as reasonably practicable, on the commencement date of the Offer, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC"), with respect to the Offer, the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") (together with any supplements or amendments thereto, the "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 Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents and any amendment or supplement thereto prior to the filing thereof with the SEC, and Parent and Purchaser shall consider such comments in good faith. Parent and Purchaser agree to provide to the Company and its counsel any comments which Parent, Purchaser or their counsel may receive from the Staff of the SEC with respect to the Offer Documents promptly after receipt thereof. The obligation of Parent to accept for payment and to or pay for any Shares validly tendered and not withdrawn prior pursuant to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall will be subject only to the satisfaction or waiver (to the extent permitted by this Agreement) of the conditions set forth in Annex III heretoI hereto (the "Offer Conditions"). Subject to Without 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the Offer; providedCompany, however, that Sub the Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price price per Share or change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive or change the Minimum Condition (as defined in Annex III heretoI), modify or amend any of impose additional conditions to the conditions set forth in Annex III hereto or Offer, except as otherwise modify provided herein, extend the Initial Expiration Date or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 the provisions of applicable federal securities laws and, on the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be date filed with the SEC andand on the date first published, subject sent or given to the Company’s compliance with Section 1.2(c)'s stockholders, disseminated shall not contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements made therein, in each case as and 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 extent required by applicable LawCompany in writing for inclusion in the Offer Documents. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. Parent and Sub the Purchaser further agree 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 as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Rsa Acquisition Corp), Merger Agreement (American Safety Razor Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 8.01 hereof and none of the events described set forth in any of paragraphs clauses (a) or through (bg) of Annex III I hereto shall have occurred and be continuing (unless waived by Parent or Sub)exist, Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”")) the Offer within ten as promptly as practicable after the date hereof, but in any event not later than five (105) business days following the date hereof. The obligations initial expiration date for the Offer shall be October 15, 1999 (the "Expiration Date"). As promptly as practicable, the Purchaser shall 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 "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase") that shall be mailed to the holders of Sub Shares with respect to the Offer. The obligation of Parent and the Purchaser to accept for payment and to or pay for any Shares tendered pursuant to the Offer will be subject only to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which represents at least seventy-five percent of the Shares entitled to vote that are 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 each condition set forth in Annex I hereto (the term "fully diluted basis" in reference to the Shares means all outstanding securities entitled generally to vote in the election of directors of the Company on a fully diluted basis, after giving effect to the exercise or conversion of all options, warrants, rights and securities exercisable or convertible into such voting securities). 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; (iii) amend or waive satisfaction of the Minimum Condition; or (iv) amend any other term of the Offer in any manner adverse to the holders of any Shares; provided, however, that if on the 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 Expiration Date (each extension to be for ten business days or less); provided, further, that the Expiration Date shall in no event be extended past October 31, 1999 without the written consent of the Company. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and purchase, as soon as practicable after the expiration of the Offer, all Shares validly tendered 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 the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.the
Appears in 2 contracts
Sources: Merger Agreement (Effective Management Systems Inc), Merger Agreement (Ifs Ab)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of 7.1, as promptly as practicable after the events described date hereof, but in any event within ten business days after the date of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Merger Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer for all of the Shares for consideration per Share consisting of the Offer Price, subject to reduction only for applicable federal back-up withholding or stock transfer taxes payable by the sellers of such Shares. The date on which Merger Sub commences the Offer, within ten the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(10b) business days following As promptly as practicable on the later of (i) the earliest date as of which Merger Sub is permitted under applicable Laws to accept for payment Shares tendered pursuant to the Offer, and (ii) the earliest date as of which each of the conditions set forth in Annex A hereto (the “Offer Conditions”) shall have been satisfied or waived, Merger Sub shall (and Purchaser shall cause Merger Sub to) accept for payment all Shares tendered pursuant to the Offer (and not validly withdrawn) (the date hereofof acceptance for payment, the “Acceptance Date”). The obligations obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered 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)Agreement) shall be subject only to the conditions set forth in Annex III hereto. 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 Conditions (and accept for payment shall not be subject to any other conditions). As promptly as is commercially and reasonably practicable after the Acceptance Date, Merger Sub shall 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 such Shares.
(the “Offer to Purchase”c) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent Merger Sub expressly reserves the right to waive any of such conditionsthe conditions set forth in Annex A, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Merger Sub shall not, and Parent Purchaser shall cause Merger Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration payable in which any component of the Offer Price is payableOffer, (iii) decrease the number of Shares sought in the Offer, waive or change (iv) impose additional conditions to the Offer, (v) extend the Offer beyond the Expiration Date (except to the extent required by Section 1.1(d) hereof), (vi) purchase any Shares pursuant to the Offer that when added to Shares owned by Purchaser and its Affiliates would represent less than the Minimum Condition or (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or vii) amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of the Company 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 belowShares, 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).
(d) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. If, at any scheduled expiration of the Offer, any of the conditions to Merger Sub’s obligation to accept Shares for payment (including, without limitation, the Minimum Condition) shall not be satisfied or waived, Merger Sub shall, and Purchaser shall cause Merger Sub to, extend the Offer beyond the then applicable expiration date thereof for a time period ending no later than the Outside Date and reasonably necessary to permit such condition to be satisfied in increments of not more than ten business days each. Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Merger 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of published by the United States Securities and Exchange Commission (“SEC”), or the staff thereof, which is applicable to the Offer. In addition The Offer may be terminated prior to its expiration date (as 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 7 hereof.
(e) If the foregoing Acceptance Date occurs but Merger Sub does not acquire at least 90% of the shares of Common Stock then outstanding, Merger Sub shall, and excluded from any such limitationsPurchaser shall cause Merger Sub to, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of not less than ten business days nor more than 20 business days; provided that Merger Sub shall, and Purchaser shall cause Merger Sub to, accept immediately and pay promptly for all Shares tendered during the initial offering period and accept immediately and pay promptly for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under the Exchange Act.
(bf) On the date of commencement of the OfferOffer Commencement Date, Parent Purchaser and Merger Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”)) with respect to the Offer. The Schedule TO shall include, as exhibits, contain or incorporate by reference the Offer to Purchase and a form forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any all amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Purchaser 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 provisions of the Exchange Act. Parent and Merger Sub agree to take all commercially reasonable steps necessary to shall cause the Offer Documents to be filed with the SEC and, subject made available to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case the Shares as and to the extent required by applicable Lawfederal securities laws. Parent Purchaser and Merger Sub, on the one hand, and the Company, on the other hand, agree to will promptly correct any information respectively provided by it them 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 or as otherwise required by Law. Parent respect, and Merger Sub further agree to take all steps necessary to will cause the Offer Documents as so corrected to be filed with the SEC and disseminated to be made available to holders of the Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and any amendment thereto the Offer to Purchase before it is they are filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent Purchaser and Merger Sub agree to provide the Company and its counsel with any comments, whether written or oral, that Parent, Purchaser or Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, comments and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub the Company and their its counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto.
(cg) Parent shall provide or cause to be 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 The Offer Price for those Shares that have been validly tendered and not withdrawn pursuant shall be adjusted to the Offer 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 Shares occurring or having a record date on or after the date of this Agreement and that Sub is obligated to accept for payment pursuant prior to the Offer and permitted to accept payment by Merger Sub for payment under applicable Lawthe Shares.
Appears in 2 contracts
Sources: Merger Agreement (International Electronics Inc), Merger Agreement (Linear LLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described set forth in any of paragraphs paragraph (a) or (b2)(iii) of Annex III hereto I shall exist or have occurred and be continuing continuing, as promptly as practicable (unless waived by Parent or Sub)and in any event within 10 Business Days) after the date of this Agreement, Sub shall, Purchaser shall (and Parent shall cause Sub Purchaser to, ) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten to purchase for cash all outstanding Shares at the Offer Price.
(10b) business days following Subject to the terms and conditions of this Agreement and the Offer, promptly after the latest of (i) the earliest date hereof. The obligations as of Sub which Purchaser is permitted under applicable law to accept for payment and to pay for any Shares validly tendered and not withdrawn prior pursuant to the expiration Offer, (ii) the earliest date as of which each of the Offer (as it may be extended in accordance with conditions and requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to I (the prior satisfaction “Offer Conditions”) has been satisfied, or waiver waived by Parent or Sub of conditions set forth in Annex III heretoPurchaser, Sub shalland (iii) the Expiration Date, Purchaser shall (and Parent shall cause Sub Purchaser to, ) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares (without interest) validly tendered and not withdrawn promptly following pursuant to the acceptance of Shares for payment Offer that Purchaser becomes obligated to purchase pursuant to the Offer. The obligation of Purchaser to accept for payment and pay for Shares (without interest) tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains contains, among other things, the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex III hereto. I. Parent and Purchaser expressly reserves reserve the right to waive any of such conditions, to (x) increase the Offer Price and (y) to waive any Offer Conditions and make any other changes in to the terms and conditions of the Offer; provided, however, that Sub shall notunless otherwise provided by this Agreement, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 Company, neither Parent nor Purchaser shall (such consent i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought to be authorized by purchased in the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoingOffer, but subject (iv) impose additional conditions to the parties’ respective rights Offer, (v) except as required by any Governmental Entity, amend or modify any terms in a manner adverse to terminate the holders of Shares, (vi) change or waive the Minimum Condition or (vii) extend or otherwise change the expiration date of the Offer other than as required or permitted by this Agreement Agreement.
(d) Unless extended pursuant to and in accordance with Section 8.1the terms of this Agreement, Sub shallthe 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, upon in the written 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 at least Company, extend the Offer for one business day before or more successive periods of not more than 10 Business Days in order to permit the then-scheduled expiration datesatisfaction 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 the initial expiration date if, at any scheduled (for one or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two more successive periods of not more than ten (10) business days per extension10 Business Days each, (ii) from time to time, extend if at any otherwise scheduled Expiration Date any of the Offer if at the scheduled or extended Expiration Date the Minimum Condition is Conditions shall have not been satisfied, for up to two periods of ten (10) business days per extension or waived by Parent or Purchaser if permitted hereunder; and
(iii) Purchaser shall extend the Offer for any period or periods required by any applicable law, rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (the “SEC”)) or its staff or Nasdaq or its staff.
(f) Purchaser may, or the staff thereofin its sole discretion, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide for a “subsequent offering period” in accordance with Rule 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 pay for, all Shares that are validly tendered and not withdrawn pursuant to the 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).
(bg) 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 the Offer.
(h) On the date of the commencement of the OfferOffer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Purchaser shall (and Parent and Sub shall cause Purchaser to) file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”)) that will comply in all material respects with the provisions of all applicable Federal and other securities Laws. The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to Purchaser shall 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), and disseminated to holders of the Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. Parent and SubEach of Parent, on the one hand, Purchaser and the Company, on the other hand, agree to Company 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 respect or as otherwise required by Lawapplicable law. Parent and Sub 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 disseminated to holders of the Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to Purchaser shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, . Parent and Purchaser shall give the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel counsel. Parent and Purchaser shall use their reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect theretoto 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 prior to the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof.
(ci) Parent shall provide or cause to be 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 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 date of this Agreement and prior to the time Purchaser accepts for those payment and pays for any Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to (the Offer and permitted to accept for payment under applicable Law“Acceptance Time”), if any.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
The Offer. As promptly as practicable (a) Provided that this Agreement shall not have been terminated but in accordance with Section 8.1 and none no event later than five business days after the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub shall, and Parent the Purchaser shall cause Sub to, 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”"EXCHANGE ACT")) a tender offer (the "OFFER") for any and all of the outstanding shares of Common Stock, par value $.03 per share (the "SHARES"), of the Company at a price of U.S.$45.00 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE") and, subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which represents at least a majority of the Shares outstanding on a fully diluted basis (the "MINIMUM CONDITION") and to the other conditions set forth in Annex A hereto, shall consummate the Offer within ten in accordance with its terms (10"FULLY DILUTED BASIS" means issued and outstanding Shares and Shares subject to issuance under Company Option Plans (as defined in Section 2.4) business days following and Shares subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the date hereofissued or unissued capital stock of the Company or securities convertible or exchangeable for such capital stock). The obligations of Sub the Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not properly withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex III A hereto. 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”"OFFER TO PURCHASE") that contains containing the terms set forth in this Agreement Agreement, the Minimum Condition and the conditions set forth in Annex III A hereto. Parent expressly reserves The Purchaser shall not amend or waive the right to waive any of such conditions, to increase the Offer Price Minimum Condition and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case Offer in any manner adverse to the holders of the Company Common Stock, impose any conditions Shares (other than with respect to insignificant changes or amendments and subject 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 penultimate sentence 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 of the Company (the "COMPANY BOARD") or a duly authorized committee thereof). Notwithstanding ; PROVIDED, HOWEVER, that if on the foregoinginitial scheduled expiration date of the Offer, but subject which shall be 20 business days after the date the Offer is commenced, all conditions to the parties’ respective rights Offer shall not have been satisfied or waived, the Purchaser may, from time to terminate this Agreement time, in accordance with Section 8.1its sole discretion, Sub extend the expiration date; PROVIDED, HOWEVER, that the Purchaser shall, upon if the written request Company, Parent and the Purchaser have not obtained the approvals of any Governmental Entity (as defined in Section 3.4) as required under Section 5.4, extend the expiration date for a period of the Company at least one lesser of (i) 2 business day before days after the then-date that all such approvals have been obtained and (ii) 35 days after such initial scheduled expiration date. In addition, the Offer Price may be increased, and may, the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company. The Purchaser shall, (i) extend on the Offer beyond terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares validly tendered as soon as it is permitted to do so under applicable law; PROVIDED, HOWEVER, that if, immediately prior to the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits theretoas it may be extended), the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and equal less than 90% of the outstanding Shares, the Purchaser may extend the Offer for a period not to exceed 10 business days, notwithstanding that Sub is obligated to accept for payment pursuant all conditions to the Offer and permitted to accept for payment under applicable Laware satisfied as of such initial expiration date of the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Extendicare Inc /Can/), Merger Agreement (Arbor Health Care Co /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 9.01 below and none of the events described set forth in any of paragraphs clauses (a) or through (bi) of Annex III A hereto shall have occurred and be continuing (unless waived by Parent or Sub)to exist, Sub shall, and Parent Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following as promptly as reasonably practicable after the date hereof, but in no event later than 10 business days after the initial public announcement of the execution and delivery of this Agreement. The obligations initial expiration date of Sub the Offer shall be 20 business days after the commencement of the Offer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least the number of Shares that shall constitute fifty and to pay for any six-tenths percent (50.6%) of the then outstanding Shares on a Fully Diluted Basis shall have been validly tendered 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)) and also shall be subject only to the satisfaction of each of the other conditions set forth in Annex III A hereto. Subject Purchaser expressly reserves the right to waive any such condition other than the Minimum Condition, to increase the cash price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that without the Company's prior written consent, no change may be made which decreases the cash price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the prior satisfaction or waiver by Parent or Sub of conditions Offer in addition to those set forth in Annex III heretoA hereto or which otherwise adversely affects the holders of Shares. Notwithstanding the foregoing, Sub shallPurchaser may, and Parent shall cause Sub towithout the consent of the Company, consummate (i) extend the Offer in accordance with its terms from time to time for the shortest time periods which the Purchaser reasonably believes are necessary until the consummation of the Offer, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser'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 equals 80% or more, but less than 90%, of outstanding Shares on a Fully Diluted Basis. In addition, if, on the then applicable expiration date of the Offer, the sole condition(s) remaining unsatisfied are (i) the failure of the waiting period under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (the "HSR Act") or under any applicable material non-United States statutes or regulations, (ii) the process pursuant to the Exon-Flor▇▇ ▇▇▇vision (as hereinafter defined) has not been completed, and/or (iii) any waiting period applicable to the consummation of the Offer under the Arms Regulations shall not have expired or been terminated then, Purchaser shall extend the Offer from time to time until 11 7 the earlier to occur of (i) January 31, 2001 and (ii) the fifth business day after the latest to occur of (A) the expiration or termination of the applicable waiting period under the HSR Act or any applicable material non-United States statutes or regulations, (B) the satisfaction of any requirements under the Exon-Flor▇▇ ▇▇▇vision, as applicable, and (C) the expiration or termination of the waiting period under the Arms Regulations. The 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. Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means Notwithstanding the immediately preceding sentence and subject to the applicable rules of an offer to purchase (the “Offer to Purchase”) that contains SEC and the terms set forth in this Agreement and conditions of the conditions set forth in Annex III hereto. Parent Offer, Purchaser expressly reserves the right to waive any delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of such conditions1934, to increase as amended (the Offer Price and to make any other changes in "Exchange Act"). If the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse payment equal to the holders of the Company 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 Per Share Amount in accordance with this Section 1.1), if any, of the Offer, whichever is later cash (the “Expiration Date”"Merger Consideration") except as set forth below, in each case without the prior written consent of the Company (such consent is to be authorized by made to a person other than the Company Board of Directors or a duly authorized committee thereof). Notwithstanding person in whose name the foregoing, but subject to surrendered certificate formerly evidencing Shares is registered on 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 stock transfer books of the Company, (i) extend it shall be a condition of payment that the Offer beyond certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the initial expiration date if, at any scheduled (or extended) expiration person requesting such payment shall have paid all transfer and other taxes required by reason of the Offer, any payment of the conditions set forth in Annex III hereto (Merger Consideration to a person other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation registered holder of the United States Securities and Exchange Commission (“SEC”)certificate surrendered, or the staff thereof, applicable shall have established to the Offer. In addition to the foregoing and excluded from any satisfaction of Purchaser that such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, taxes either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 paid or are not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Lawapplicable.
Appears in 2 contracts
Sources: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article IX hereof and none of the events described set forth in Annex I hereto (the ‘‘Tender Offer Conditions’’) shall have occurred, as promptly as reasonably practicable, Parent shall cause Purchaser to commence (within the meaning of the Exchange Act) an offer to purchase all outstanding shares of Seller Common Stock at the Offer Price, and shall, upon commencement of the Offer but after affording the Seller a reasonable opportunity to review and comment thereon, file a Schedule TO and all other necessary documents with the Securities and Exchange Commission (the ‘‘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’’), and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions 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 shall cause it to, as soon as possible after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding Tax), all shares of Seller Common Stock validly tendered pursuant to the Offer and not withdrawn (the date of acceptance for payment, the ‘‘Acceptance Date’’).
(b) Without the prior written consent of the Seller, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Seller 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 Seller Common Stock. The Offer shall remain open until the date that is twenty (20) Business Days after the commencement of the Offer (the ‘‘Expiration Date’’), unless 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 Laws, 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 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 Purchaser, Purchaser may extend the Offer from time to time; provided, however, that, on the 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 Merger, including clearance under the German Act against Restraints of Competition, 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 , including clearance under the German Act against Restraints of Competition, (ii) if any of the Tender Offer Conditions set forth in paragraphs (a) or (b) of Annex III I hereto shall have occurred and be continuing (unless waived by Parent or Sub)continuing, Sub shall, and Parent Purchaser shall cause Sub to, 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”)) extend the Offer within ten from time to time until the earlier of (10A) business days following five (5) Business Days after the date hereof. The obligations 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 non-appealable; or (iii) if all of Sub to accept for payment the Tender Offer Conditions are satisfied and to pay for any Shares more than 50% but less than 90% of the outstanding shares of Seller Common Stock on a fully diluted basis (as defined in Annex I) have been validly tendered and not withdrawn prior in the Offer, Purchaser shall have the right, in its sole discretion, but not the obligation to the expiration of extend the Offer from time to time up to a maximum of ten (as it may be extended 10) additional Business Days in accordance with requirements of the aggregate. Nothing contained in this Section 1.1(a)) paragraph shall be subject only to the conditions set forth affect any termination rights in Annex III heretoArticle IX. Subject to the prior satisfaction or waiver by Parent or Sub terms 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 this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Purchaser will accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance shares 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company Seller 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Stock validly tendered and not validly withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to as soon as practicable after such Expiration Date of the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none 7.1, as promptly as practicable (but in no event later than five business days after the public announcement of the events described in any execution of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subthis Agreement), Sub Purchaser shall, and Parent shall cause Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules "Exchange Act")) an offer (the "Offer") to purchase for cash any and regulations promulgated thereunderall shares of the issued and outstanding Company Common Stock at a price of $22.75 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to the conditions set forth in Annex A hereto and subject to Section 2.2(e). The Company shall not tender Shares held by it or by any of 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 “Exchange Act”"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 within ten (10except that the Minimum Condition (as hereinafter defined) business days following may not be amended or waived below 51% of the date hereoftotal 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 Sub Purchaser to consummate the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered and not 6 withdrawn prior to the expiration of the Offer Offer, not less than 18,400,000 shares of Company Common Stock (as it may be extended in accordance with requirements the "Minimum Condition"), which shares represent 68.3% of this Section 1.1(a)the total issued and outstanding shares (other than treasury shares) shall be subject only to of Company Common Stock on the date hereof, and the other conditions set forth in Annex III A hereto. 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. .
(b) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains containing the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions set forth in Annex III A hereto. Parent expressly reserves Purchaser shall not amend or waive the right Minimum Condition to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms be less than 51% of the Offer; provided, however, that Sub total issued and outstanding shares (other than treasury shares) of Company Common Stock and shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offersought, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions to the Offer set forth in Annex III hereto A or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not in addition to those set forth on in Annex III heretoA, 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 of the Company or a duly authorized committee thereof). .
(c) Notwithstanding Section 1.1(b): (i) Purchaser shall be entitled to and shall, and Parent agrees to cause Purchaser to, extend the foregoingOffer (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 subject 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 parties’ respective rights Offer set forth in paragraph (ii) of Annex A has not been satisfied or waived; (y) the condition to terminate 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 Agreement Section 1.1(c)(ii) on or before October 8, 1999, Purchaser shall be obligated to extend the Offer as set forth in accordance with clause (A) of this Section 8.1, Sub shall, 1.1(c)(ii) upon the written request demand of the Company delivered to Purchaser on or before October 12, 1999; and (iii) at least one business day before the then-scheduled expiration dateExpiration Date, if all conditions to the Offer 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 Offer, Purchaser may, in its sole discretion and without the consent of the Company, (i) extend the Offer beyond (and defer the initial expiration date if, at any scheduled (or extendedExpiration Date) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two an additional 20 business days in the aggregate (in periods of not no more than ten (10) five business days per extensioneach). In addition, (ii) from time to time, extend the Offer if at Price may be increased and the scheduled or Offer may be extended to the extent required by law in connection with such increase without the consent of the Company. Any extension of the Offer in accordance herewith shall defer the Expiration Date until the Minimum Condition is not satisfied, for up latest date to two periods of ten (10) business days per extension or (iii) extend which the Offer for any period required is so extended.
(d) In the event that the Offer is terminated by any rulePurchaser, regulation or interpretation it shall deliver to the Company a written statement setting forth the applicable provision of Annex A of this Agreement pursuant to which it has elected to terminate the Offer.
(e) As soon as practicable 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. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO 14D-1 shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 shall comply in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and Sub agree to Purchaser shall further 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto.be
(cf) Parent shall provide or cause to be provided to Sub promptly following Purchaser all 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 purchase any shares of Company Common Stock that have been validly tendered and not withdrawn Purchaser becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Red Roof Inns Inc), Merger Agreement (Accor Sa /Fi)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub Merger Subsidiary shall, and Parent shall cause Sub toas promptly as practicable after the date hereof, 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”)) the Offer within ten (10) but in no event later than five business days following the date hereofpublic announcement of the terms of this Agreement, commence an offer (the "OFFER") to purchase all of the outstanding shares of common stock, par value $.001 per share (the "SHARES"), including the associated Rights (defined in Section 4.1(c)), of the Company at a price of $29.25 per Share (including the associated Right), net to the seller in cash. The obligations of Sub Offer shall be subject to accept for payment and to pay for any Shares the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as it may be extended in accordance with requirements of this Section 1.1(a)the "FULLY DILUTED SHARES") shall be subject only (the "MINIMUM CONDITION") and to the other conditions set forth in Annex III hereto. 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 I hereto. Parent and Merger Subsidiary expressly reserves reserve the right to waive any of such conditions, the conditions to increase the Offer Price and to make any other changes change in the terms or conditions of the Offer; providedPROVIDED that, howeverwithout the written consent of the Company, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or no change may be made which changes the form of consideration in which any component of to be paid, decreases the Offer Price is payable, decrease price per Share or the number of Shares sought in the Offer, waive imposes conditions to the Offer in addition to those set forth in Annex I, changes or change waives the Minimum Condition Condition, extends the Offer (except as defined set forth in the following sentence), or makes any other change to any condition to the Offer set forth in Annex III hereto)I which is adverse to the holders of Shares. Subject to the terms of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, modify or amend any Merger Subsidiary shall accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; PROVIDED that Merger Subsidiary may (or, if the conditions set forth in clauses (a), (b), (c), (d) and (i) of Annex III hereto I exist, shall) extend the Offer if, at the scheduled expiration date of the Offer or otherwise modify any extension thereof any of the conditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or amend any other term 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, in each case in any manner adverse prior to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a expiration date that is twenty-one (21) business days after commencement of the Offer or the last extension (as permitted in accordance so extended) and not withdrawn a number of Shares, which together with this Section 1.1)Shares then owned by Parent and Merger Subsidiary, if any, represents at least 90% 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActFully Diluted Shares.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall (i) file with the SEC, pursuant to Regulation M-A under the Exchange Act SEC (“Regulation M-A”defined below in Section 4.1(a), ) a Tender Offer Statement on Schedule TO 14D-l with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal (together with all amendments, any supplements and exhibits or amendments thereto, collectively the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase "OFFER DOCUMENTS") and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to ii) 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. Parent, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, Merger Subsidiary and the Company, on the other hand, 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 or as otherwise required by Lawrespect. Parent and Sub further 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is 14D-l prior to its being filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Platinum Technology International Inc), Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided that this Agreement The Company shall not have been terminated in accordance with Section 8.1 and none commence the Offer as promptly as practicable. The obligation of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, Company to 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”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub and to accept for payment payment, and to pay for any Shares validly shares of WorldPort Common Stock tendered and not withdrawn prior pursuant 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 the satisfaction of the conditions set forth in Annex III heretoEXHIBIT D (the "OFFER CONDITIONS"). Subject to As soon as reasonably practicable following execution of this Agreement, the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretoCompany shall file with the SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on Schedule TO, Sub shallincluding all exhibits thereto (together with all amendments and supplements thereto, and Parent shall cause Sub to, consummate the Offer in accordance "SCHEDULE TO") 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 respect to the Offer, the Merger and the other transactions contemplated hereby. The Offer Schedule TO shall be made contain or incorporate by means of reference an offer to purchase (the “Offer to Purchase”"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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms forms of the Offer; provided, however, that Sub shall not, related letter of transmittal and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 related documents (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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements or amendments and supplements thereto, collectively, the “Offer Documents”"OFFER DOCUMENTS"). Subject Heico and JOHCM shall each use their commercially reasonable efforts to Section 5.2, the Company hereby consents to the inclusion in ensure that (i) 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 shall comply in all material respects with all applicable provisions the requirements of the Exchange Act. Parent , and Sub agree (ii) on the date filed with the SEC and on the date first published, sent or given to take all commercially reasonable steps necessary to cause 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 stated therein or necessary in order to make the statements therein, in 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, 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 Law. Parent and Sublaw or regulation, 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 disseminated to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. 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 disseminated to holders shareholders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretoWorldPort.
(c) Parent shall provide or cause to be 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 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 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 this Agreement shall not have been terminated As promptly as practicable (but in accordance with Section 8.1 and none no event later than five business days after the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub shall, and Parent Purchaser shall cause Sub to, 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”")) the Offer within ten to purchase for cash all of the issued and outstanding shares of Company Common Stock at a price of $17.50 per Share, net to the seller in cash (10such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represents at least 80% of the Shares outstanding on a fully diluted basis (the "Minimum Condition") business days following and to the date hereofother 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 obligations of Sub Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex III A hereto. 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 containing the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions set forth in Annex III A hereto. Parent expressly reserves Without the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the Offer; providedCompany, however, that Sub Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payablePrice, decrease the number of Shares sought sought, change the form of consideration to be paid in the Offer, waive or change the Minimum Condition (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, in each case Offer in any manner adverse to the holders of the Shares (other than with respect to the Minimum Condition or insignificant changes or amendments) without the written consent of the Company; PROVIDED, HOWEVER, that if prior to the initial scheduled expiration date of the Offer the Company Common Stockshall have received a Higher POL Offer (as defined in Section 6.13 below) that the Company intends to accept, impose any 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 that are shall not set forth on Annex III heretohave been satisfied or waived, or extend the Offer beyond a date that is twenty-one (21) business days after commencement may be extended from time to time until February 1, 1996 without the consent of the Company. In addition, the Offer or Price may be increased and the last extension (as permitted Offer may be extended to the extent required by law in accordance connection with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth belowsuch increase, 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, 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 . Purchaser shall terminate the Offer beyond upon termination of this Agreement pursuant to its terms.
(b) As soon as practicable on the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfiedcommenced, 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 or interpretation of Parent and Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO shall 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”). Subject to Section 5.2, the Company hereby consents ") with respect 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)Offer. The Offer Documents will comply in all material respects with all applicable the provisions of applicable Federal securities laws and, on the Exchange Actdate 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 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 Sub agree Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable LawFederal securities laws. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, 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 and misleading in any material respect or as otherwise required by Law. Parent and Sub Purchaser further agree 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 LawFederal securities laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule TO and any amendment thereto 14D-1 before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel in writing with any comments, whether written or oral, that comments Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Psicor Inc), Merger Agreement (Baxter International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article IX, and none of the events described in any of paragraphs (a) or (b) of Annex III hereto that no event shall have occurred and be continuing (unless waived by Parent or Sub)that would result the failure to be satisfied of any of the conditions set forth in Annex A, Sub shall, and Parent Purchaser shall cause Sub to, 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”)) the Offer within ten no earlier than September 22, 2010.
(10b) The initial expiration date of 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 following from the date hereof. 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 Sub Purchaser to commence the Offer and accept for payment payment, and pay for, any Public Shares tendered pursuant to pay for any Shares the Offer are subject only to (i) the conditions set forth in Annex A 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 prior 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”). The conditions to the expiration Offer set forth in Annex A are for the sole benefit of Purchaser and may be asserted by Purchaser regardless of the Offer circumstances (as it 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 extended asserted at any time and from time to time.
(d) Purchaser expressly reserves the right (i) to increase the Offer Price and (ii) to waive any condition to the Offer or modify the terms of the Offer, except that the Minimum Condition may not be waived and that, without the consent of the Company, Purchaser shall not (A) reduce the number of Public Shares subject to the Offer, (B) except as provided in accordance with requirements of this Section 1.1(a)4.4, reduce the Offer Price, (C) shall be subject only add to the conditions set forth in Annex III hereto. Subject to the prior satisfaction A or waiver by Parent or Sub of conditions modify any condition 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case A in any manner adverse to the holders of Public Shares or (D) change the Company 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 form of the Offer or the last extension (as permitted consideration payable in accordance with this Section 1.1), if any, of the Offer, whichever is later .
(the “Expiration Date”e) except as set forth below, Purchaser may 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, 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, its discretion (i) extend the Offer beyond the initial expiration date if, at any scheduled (for one or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods more consecutive increments of not more than ten (10) business days per extensioneach, if at any otherwise scheduled Expiration Date of the Offer any of the conditions to Purchaser’s obligation to purchase Public Shares in the Offer are not satisfied or waived, (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 the minimum period required by any rule, regulation regulation, interpretation or interpretation position of the United States Securities and Exchange Commission (the “SEC”), ) or the staff thereof, thereof applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide or (iii) make available a “subsequent offering period” in accordance with Rule 14d-11 under of the Exchange Act.
(bf) On the date of commencement of the Offer, Parent and Sub Purchaser shall file comply with the SEC, pursuant to Regulation M-A obligations respecting prompt payment and announcement under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to and, without limiting the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents generality 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andforegoing, 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 Law. Parent and Sub, on the one handPurchaser shall accept for payment, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicablepay for, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Public Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept promptly following the acceptance of such Public Shares for payment pursuant to the terms and subject to the conditions of the Offer and permitted this Agreement. This paragraph shall not be deemed to accept for payment under applicable Lawimpair, limit or otherwise restrict in any manner the right of Purchaser to terminate this Agreement pursuant to 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 this Agreement shall not have --------- been terminated in accordance with Section 8.1 and none 7.1, as promptly as practicable (but in no event later than five business days after the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub the Purchaser shall, and Parent shall cause Sub Purchaser to, 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”")) an offer (the "Offer") to purchase for cash any and all shares of the issued and outstanding Company Common Stock at a price of $17.85 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer within ten (10) business days following Price"), subject to the date hereofconditions set forth in Annex A hereto. The Company shall not tender Shares held by it or by any of 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 Sub the Purchaser to consummate the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not withdrawn shall be subject only to the conditions set forth in Annex III A hereto. 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. .
(b) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains containing the terms set forth in this Agreement and the conditions set forth in Annex III A hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub The Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offersought, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions to the Offer set forth in Annex III hereto A or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not in addition to those set forth on in Annex III heretoA, 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 of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, but subject 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 parties’ respective rights Offer is not satisfied or waived; provided however, that the Purchaser shall not be required to terminate 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 in accordance with Section 8.1, Sub shall, upon after the written request of Purchaser shall have given the Company at least one five business day before days prior written notice of any such non-compliance. In addition, without limiting the then-scheduled expiration dateforegoing, and the Purchaser may, without the consent of the Company, (iA) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two an additional 40 days, in one or more periods of not more than ten 10 business days, if any condition to the Offer is not satisfied or waived and (10B) business days per extensionif, 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 (iias defined in Annex A hereto) from time to timebut equal less than 90% of the outstanding Shares, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, on one occasion for up to two periods of ten (10) 10 business days per extension or (iii) extend notwithstanding that all the conditions to the Offer for have been satisfied so long as Purchaser irrevocably waives the satisfaction of any period of the conditions to the Offer (other than in the case of paragraph (a) of Annex A hereto the occurrence of any statute, rule, regulation, judgment, order or preliminary or permanent injunction making illegal or prohibiting the consummation of the Offer) that subsequently may not be satisfied during any such extension of the Offer. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by any rulelaw 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, regulation or interpretation of Parent and the Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO 14D-1 shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 shall comply in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and Sub agree to the Purchaser shall further take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to 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 or as otherwise required by Law. Parent and Sub the Purchaser further agree to 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on upon the Schedule TO 14D-1 (and shall provide any amendment thereto before it is filed comments thereon as soon as practicable) prior to the filing thereof with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel in writing with any comments, whether written or oral, comments that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, comments and with copies of any written or oral responses thereto, and the Company shall have the right to consult with telephonic notification of any verbal responses by Parent, Sub and Purchaser or their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocounsel.
(cd) Parent shall provide or cause to be provided to Sub promptly following the expiration Purchaser all 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 purchase any shares of Company Common Stock that have been validly tendered and not withdrawn Purchaser becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
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 this Agreement shall not have been terminated in accordance with Section 8.1 7.1, as promptly as practicable (and none of the events described in any of paragraphs event within ten (a10) or Business Days from the date hereof, Purchaser shall (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub Purchaser to, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) the Offer within ten to purchase for cash all Shares at the Offer Price, subject to:
(10i) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares there being validly tendered in the Offer and not withdrawn prior to any then scheduled Expiration Date (as defined below) that number of Shares which, together with the expiration Shares then beneficially owned by Parent or Purchaser (if any), represents at least sixty-six and two-thirds percent (66 2/3%) of: (x) all Shares then outstanding, plus (y) all Shares issuable upon the exercise, conversion or exchange of any Company Stock Options or Company Warrants then outstanding that are vested and exercisable, convertible or exchangeable as of any then scheduled Expiration Date or that would be vested and exercisable, convertible or exchangeable (including after giving effect to the acceleration of any vesting or exercisability, convertibility or exchangeability that may occur as a result of the Offer Offer) at any time within sixty (as it may be extended in accordance with requirements 60) days following the then scheduled Expiration Date assuming that the holder of this Section 1.1(asuch Company Stock Options satisfies the vesting or exercisability, convertibility or exchangeability conditions applicable thereto during such time period (the “Minimum Condition”); and
(ii) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction satisfaction, or waiver by Parent or Sub Purchaser, of the other conditions and requirements set forth in Annex III heretoI.
(b) Subject to Section 1.1(a), Sub shall, Purchaser shall (and Parent shall cause Sub Purchaser to, ) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer as promptly as practicable. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer shall be paid net to the seller in cash subject to withholding as provided in Section 2.2(e).
(c) 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 Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex III hereto. I. Parent and Purchaser expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offeroffer; provided, however, that Sub unless otherwise provided by this Agreement or as previously approved by the Company in writing, Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, waive (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) impose conditions to the Offer that are different from, or change the Minimum Condition (as defined in Annex III hereto)addition to, modify or amend any of the conditions set forth in Annex III hereto I, (v) amend or otherwise modify or waive the Minimum Condition, (vi) amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on in Annex III hereto, I or (vii) extend the Offer beyond a date that is twenty-one (21) business days after commencement expiration of the Offer or the last extension (in a manner, other than as permitted in accordance with required by this Section 1.1)Agreement, 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 Company.
(such consent d) Unless extended pursuant to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement and in accordance with Section 8.1the terms of this Agreement, 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 shall expire at midnight (New York City time) on the initial expiration date if, at any scheduled that is twenty (or extended20) expiration of the Offer, any of the conditions set forth in Annex III hereto Business Days (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” this purpose calculated in accordance with Rule 14d-11 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 (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to, and in accordance with 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 this Agreement, is referred to as the “Expiration Date”).
(be) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive extended from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.follows:
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
The Offer. (a) Provided that (i) none of the events set forth in paragraphs (b) and (d) of Annex I to this Agreement shall have occurred and be existing, (ii) the Company shall have complied with its obligations under Section 2.03(c) and Section 2.03(d) and (iii) this Agreement shall not have previously been validly terminated in accordance with Section 8.1 and none 10.01, as promptly as reasonably practicable, but in no event later than twelve (12) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the date of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Sub shall, and Parent shall cause Sub Purchaser to, and Purchaser shall, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten for all of the outstanding Company Common Shares (10other than Company Common Shares described in Section 4.01(a)) business days following for a price per Company Common Share equal to the date hereofOffer Price (as adjusted as provided in Section 2.01(f)). The obligations date on which Purchaser commences the Offer, within the meaning of Sub Rule 14d-2 promulgated under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”.
(b) As promptly as practicable on the later of: (i) the earliest date as of which Purchaser is permitted under applicable Law to accept for payment and to pay for any Company Common Shares validly tendered and not withdrawn prior pursuant to the expiration 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 (as it may be extended in accordance with requirements and not validly withdrawn). The obligation of this Section 1.1(a)) Purchaser to accept for payment Company Common Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex III hereto. 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 each of the Offer in accordance with its terms Conditions (and accept shall not be subject to any other conditions). Promptly after the acceptance for payment and pay for all of any Company Common Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer , Purchaser shall be made by means of an offer to purchase pay for such Company Common Shares.
(the “Offer to Purchase”c) that contains the terms set forth in this Agreement Parent and the conditions set forth in Annex III hereto. Parent Purchaser expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and to make Price, waive any other changes in Offer Condition or amend, modify or supplement any of the Offer Conditions or terms of the Offer; provided. Notwithstanding anything to the contrary contained in this Agreement, however, that Sub neither Parent nor Purchaser shall not, and Parent shall cause Sub not to, decrease (without the Offer Price or change the form of consideration in which any component prior written consent of the Offer Price is payable, decrease the number of Shares sought in the Offer, Company):
(i) change or waive or change the Minimum Condition (as defined in Annex III heretoI);
(ii) decrease the number of Company Common Shares sought to be purchased by Purchaser in the Offer;
(iii) reduce the Offer Price;
(iv) extend or otherwise change the expiration date of the Offer (except to the extent permitted or required pursuant to Section 2.01(d));
(v) change the form of consideration payable in the Offer; or
(vi) amend, modify or amend supplement any of the conditions set forth in Annex III hereto Offer Conditions or otherwise modify or amend any other term or condition terms of the OfferOffer in a manner that adversely affects, in each case in any manner adverse or would reasonably be expected to adversely affect, the holders of the Company Common StockShares.
(d) Unless extended as provided in this Agreement, impose any conditions to the Offer that are not set forth shall expire 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 “Initial Expiration Date”) except that is twenty (20) business days (calculated as set forth below, in each case without Rule 14d-1(g)(3) promulgated under the prior written consent of Exchange Act ) after the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)Offer Commencement Date. Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) Purchaser shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the its staff thereof, or Nasdaq that is applicable to the Offer. In addition ; provided, that in no event shall Purchaser be required to extend the Offer beyond the Outside Date, (ii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (an “Extended Expiration Date”), the Minimum Condition or the Regulatory Condition is not satisfied, then, to the foregoing extent requested in writing by the Company no less than two (2) business days prior to the applicable 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 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 excluded from any such limitationsthis Agreement has not been terminated in accordance with its terms, Sub also may 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 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 the Initial Expiration Date and (v) Purchaser may, in its discretion, elect to provide for a “subsequent offering period” 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 the 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 set forth in this Agreement and the Offer, Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for all Company Common Shares validly tendered and not withdrawn during such subsequent offering period as promptly as practicable after 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.
(be) On The Offer may be terminated prior to its expiration date (as 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 commencement of the Offer, Parent this Agreement and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and payment by Purchaser for the Company Common Shares; provided that this subsection (f) shall have not affect or supersede the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments provisions of the Company and its legal counsel with respect theretoSection 5.01(b) hereof.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Agreement and Plan of Merger (Cnet Networks Inc), Merger Agreement (CBS Corp)
The Offer. (a) Provided that Unless this Agreement shall not have previously been terminated in accordance with Section 8.1 and none Article IX, as promptly as practicable, but in any event within ten (10) Business Days after the date of the events described initial public announcement of this Agreement (but in any no event earlier than five (5) Business Days after the date of paragraphs (a) or (b) the initial public announcement of Annex III hereto have occurred and be continuing (unless waived by Parent or Subthis Agreement), Merger Sub shall, will (and Parent shall will cause Merger Sub to, commence ) “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”)) the Offer within ten Offer.
(10b) business days following the date hereof. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares shares of Target Common Stock validly tendered and not validly withdrawn prior pursuant to the expiration Offer are subject to the terms and the satisfaction or waiver (to the extent permitted under this Agreement) of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III heretoI (as they may be amended from time to time in accordance with this Agreement, collectively, the “Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement). Subject On the terms and subject to the prior satisfaction or waiver by Parent or Sub conditions of conditions set forth in Annex III heretothe Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and irrevocably accept for payment and pay for all Shares shares of Target Common Stock validly tendered and not validly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer as soon as practicable (the “Accepted Shares”) after the Expiration Time and in compliance with applicable Law. The Offer Price payable in respect of each Accepted Share pursuant to the immediately preceding sentence shall be made by means paid net to the Selling Stockholder in cash, without interest and subject to any required withholding of an offer Taxes, on the terms and subject to purchase the conditions hereof. Pursuant to and in accordance with the Target 2006 Incentive Plan, the Offer Price to be paid with respect to Target Restricted Stock Awards (as defined below) will be paid to the holders of such Target Restricted Stock Awards in accordance with the procedures, and subject to the restrictions, set forth in Section 4.07(c). The acceptance for payment of Accepted Shares pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing.”
(c) The Offer Conditions are for the sole benefit of Parent and Merger Sub, and Parent and Merger Sub may waive, in whole or in part, any Offer Condition at any time and from time to Purchase”) that contains time, in their sole and absolute discretion, other than the terms set forth in this Agreement Minimum Condition, which may be waived by Parent and Merger Sub only with the conditions set forth in Annex III heretoprior written consent of the Target. Parent and Merger Sub expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; providedprovided that, howeverunless otherwise provided in this Agreement or previously approved by the Target in writing, that Parent and Merger Sub shall not, and Parent shall cause Sub not to, : (i) decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, (ii) decrease the number of Shares shares of Target Common Stock sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions, (iv) amend any Offer Condition in a manner that is adverse in any material respect to the holders of shares of Target Common Stock, (v) waive or change amend the Minimum Condition Condition, (vi) extend the Expiration Time except as defined in Annex III hereto), modify required or amend any of the conditions set forth in Annex III hereto permitted by Section 2.01(e) or otherwise modify or (vii) amend any other term or condition of the Offer, Offer in each case a manner that is adverse in any manner adverse material respect to the holders of the Company shares of Target Common Stock, impose any conditions to .
(d) On the date the Offer that are not set forth on Annex III heretois commenced, 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, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Merger Sub shall, upon and Parent shall cause Merger Sub to, file with 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States U.S. Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer (together with all amendmentsStatement shall include or incorporate by reference an offer to purchase, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and transmittal, summary advertisement and other required ancillary offer documents (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject disseminated to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case shares of Target Common Stock as and to the extent required by applicable Law. The Target hereby consents to the inclusion of the Target Board Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. The Target shall promptly (but in no event more than two (2) Business Days) furnish to Parent and Sub, on Merger Sub all information concerning the one hand, Target and the Companyholders of shares of Target Common Stock that may be required by applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 2.01(d), on including communication of the other hand, agree Offer to the record and beneficial holders of shares of Target Common Stock. Each of the parties agrees 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 or as otherwise required by Law. respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the holders of Sharesshares of Target Common Stock, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Merger Sub shall give due consideration to 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 Target in writing with any written comments (and shall orally describe any oral comments, whether written or oral, ) that Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of shares of Target Common Stock, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such commentscomments of the SEC with respect to the Offer Documents, either Parent and Merger Sub shall provide the Target, in written or oral form. The Company and its legal counsel shall be given each instance, with a reasonable opportunity to review any responses to and comment on such comments Offer Documents or communicationsresponse, and Parent and Merger Sub shall give due reasonable consideration to any comments provided by the Target. Parent and Merger Sub shall use commercially reasonable efforts to respond promptly to any such SEC comments.
(e) The Offer will initially expire at 11:59 p.m. (Boston, Massachusetts time) on January 2, 2015 (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 the foregoing, (i) if, on the date of the then-effective Expiration Time, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions, except that if immediately prior to any scheduled Expiration Time, all reasonable views Offer Conditions (except the Minimum Condition) have been satisfied or waived by the Parent or the Merger Sub, then the Parent’s and the Merger Sub’s obligations to extend the Expiration Time shall be limited to (A) an extension of the Expiration Time for one period of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, to permit the satisfaction of the Minimum Condition, and (B) if at the end of such period described in clause (A), the Minimum Condition continues to not be satisfied, an extension of the Expiration Time for up to two (2) additional periods of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer periods as the parties may agree, after which, if the Minimum Condition remains unsatisfied, neither the Parent nor the Merger Sub shall be required to extend the Expiration Time (it being understood, for the avoidance of doubt, that (I) the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived and (II) without the prior written consent of the Target, the “extension periods” described in this clause (i), collectively, may not be less than such number of Business Days that when added to the number of Business Days elapsed from the commencement of the Offer would total fifty (50) Business Days), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC, its staff, or any national securities exchange on which the Target’s securities trade applicable to the Offer or necessary to resolve any comments of the Company SEC or its staff applicable to the Offer or the Offer Documents; provided that, in the case of clauses (i) and its legal counsel (ii), Merger Sub shall not in any event be required to, and without the Target’s prior written consent shall not, extend the Offer beyond the date that is fifty-two (52) Business Days following the commencement of the Offer in accordance with respect theretoSection 2.01(a) above (the “Outside Date”). Nothing in this Section 2.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Target, Parent or Merger Sub to terminate this Agreement pursuant to Article IX. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Article IX, prior to the acceptance for payment of shares of Target Common Stock tendered in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Target Common Stock to the registered holders thereof.
(cf) Parent shall will provide or cause to be provided to Sub promptly following Merger Sub, on a timely basis so as to satisfy Merger Sub’s obligations under this Agreement and the expiration of Offer, 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 any shares of Target Common Stock that have been validly tendered and not withdrawn pursuant to the Offer and that Merger Sub is becomes obligated to accept for payment payment, and pay for, pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Enernoc Inc), Merger Agreement (World Energy Solutions, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)Article V, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the its rules and regulations promulgated thereunderregulations, the “Exchange Act”)) ), the Offer 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) business days following Business Days) after the date hereofof this Agreement; provided, however, if the Company is not ready to 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 obligations obligation of Sub Purchaser to accept for payment and to 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 the expiration 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 (ii) the satisfaction, or waiver by Parent or Purchaser, in their sole discretion, of the conditions or requirements set forth in Annex A attached hereto (together with the Minimum Condition, the “Offer (as it may be extended Conditions”), other than the Minimum Condition. The Offer Price payable in accordance with requirements respect of this Section 1.1(a)) each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, on the terms and subject only to the conditions set forth in Annex III hereto. 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. this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains describes the terms and conditions of the Offer as set forth in this Agreement and Agreement, including the conditions set forth in Annex III heretoOffer Conditions. Parent and Purchaser expressly reserves reserve the right (in their sole discretion) to waive waive, in whole or in part, any of such conditions, Offer Condition or to increase the Offer Price and to make any other changes in the terms of the OfferPrice; provided, however, that Sub that, unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not, and Parent shall cause Sub not to,
(i) decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, (ii) decrease the number of Shares sought in subject to the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of iii) add to the conditions set forth on Annex A, (iv) amend or modify any Offer Condition in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any a manner that is adverse to the holders of Company Shareholders, (v) waive or amend the Company Common StockMinimum Condition, impose any conditions to (vi) except as otherwise provided in this Section 1.1, extend or otherwise change the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a expiration date that is twenty-one (21) business days after commencement of the Offer or (vii) otherwise amend, modify or supplement the last extension (as permitted in accordance with this Section 1.1), if any, terms of the Offer, whichever Offer in a manner that is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of adverse to the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding Shareholders; provided that, notwithstanding the foregoing, but subject Purchaser expressly reserves the right (exercisable in its sole discretion) 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 increase the Offer beyond the initial expiration date if, at any scheduled (Price or extended) expiration of the Offer, to waive any of the conditions set forth in Annex III hereto (Offer Conditions, other than the Minimum Condition.
(d) Purchaser shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend file with 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 or interpretation of the United States U.S. Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The ) on the date that the Offer is commenced, which Schedule TO shall include, as exhibits, the Offer to Purchase and a Purchase, form of transmittal letter and form of transmittal and summary advertisement notice of guaranteed delivery (collectivelysuch Schedule TO, including all such exhibits, together with any supplements or amendments and supplements thereto, the “Offer Documents”) and, subject to the Company’s compliance with Section 1.2(b). Subject , cause the Offer Documents to Section 5.2, be disseminated to the Company hereby consents 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 of or in connection with the recommendation and obligations relating to the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply contained in all material respects with all applicable provisions of the Exchange Actthis Section 1.1(d). Parent and Sub agree to Purchaser shall take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and disseminated to the Company’s compliance with Section 1.2(c), disseminated to holders of SharesCompany Shareholders, in each case as and to the extent required by applicable Law. Parent and SubPurchaser, on the one hand, agree to amend the Offer Documents and the Company, on the other hand, agree 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 respect or as otherwise required by applicable Law. Parent and Sub 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 disseminated to holders of Sharesthe Company Shareholders, in each case as and to the extent required by applicable Law. The Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the Company Shareholders, the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SECsuch Offer Documents, and Parent and Sub Purchaser shall give due 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, and shall promptly provide the Company with copies of all reasonable additionscorrespondence between them and their representatives, deletions or modifications thereto suggested by on the one hand, and the SEC, on the other hand, and shall give the Company and its legal counsel. In addition, counsel a reasonable opportunity to participate in the response of Parent and Sub agree Purchaser to those comments and to provide the Company with comments on any response, and Parent and Purchaser shall give reasonable consideration to any such comments, whether written or oral, that Parent, Sub or their counsel may receive from time . Prior to time prior responding to the expiration or termination any comments of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, Parent and any written or oral responses thereto, and Purchaser shall provide the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to and comment on such comments or communicationsresponse, and Parent and Sub Purchaser shall give due reasonable consideration to all reasonable views any such comments.
(e) Subject to the terms and comments 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 legal counsel with respect theretosole discretion; provided, however, that in no event shall Purchaser be required or permitted to extend the Offer beyond December 31, 2011 (the “Outside Date”).
(cf) Parent shall provide Subject to the terms and conditions set forth in this Agreement and to satisfaction or cause to be provided to Sub promptly following the expiration waiver of the Offer or Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer and accept for payment and pay for (subject to any subsequent extension thereof, as applicable, withholding of Taxes pursuant to Section 1.1(h)) all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Time (as it may be extended and that Sub is obligated to accept re-extended in accordance with 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 sole discretion, extend the Offer for additional “subsequent offering periods” (and one or 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 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 V. If the Offer is terminated or withdrawn by Purchaser, 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 shall cause any depository acting on behalf of Purchaser to return, all tendered Shares 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 tendered in the Offer but prior to payment for such Shares.
(h) Parent, Purchaser and any depository acting on behalf of Parent or Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts otherwise payable to any Person pursuant to this Agreement as may be required to be deducted and permitted withheld with respect to accept for the making of such payment under the Internal Revenue Code of 1986, as amended (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 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 that In accordance with the provisions of this Agreement and provided that nothing shall not have been terminated occurred which would result in accordance with Section 8.1 and none a failure of any of the events described conditions set forth in any of paragraphs (a) or (b) of Annex III A, attached hereto have occurred and be continuing (unless waived by Parent or Sub)made a part hereof, Sub shallas promptly as practicable, and in no event later than the fifth (5th) business day following the date hereof, the Parent shall cause Sub the Purchaser to, and the Purchaser shall 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”")) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer , a tender offer (as it may be extended amended from time to time as permitted hereunder, the "Offer") for all of the issued and outstanding shares (the "Shares") of the Common Stock (defined hereafter) at a price of Twenty Three Dollars and Forty Cents ($23.40) per share net to the seller in cash, without interest thereon (such price or such higher price per share as may be paid in the Offer, being 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 in accordance with requirements the terms of this Section 1.1(a)) shall be Agreement, subject only to the conditions set forth in Annex III A hereto. Subject The Purchaser shall, subject only to the prior satisfaction or waiver by Parent or Sub of the conditions set forth in on Annex III A 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 validly tendered and not withdrawn promptly following the acceptance of Shares for payment 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”") that contains containing the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditionsAgreement, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III A hereto), modify or amend any of ) and the other conditions set forth in Annex III hereto or otherwise modify or amend 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 term or condition of the Offer, in each case in any manner adverse changes to the holders of the Company Common Stock, impose any terms or 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 waive in whole or in part, at the last extension (as permitted in accordance with this Section 1.1sole discretion of the Purchaser any of such conditions), if anyprovided, of however, that the OfferPurchaser will not, 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 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 a duly authorized committee thereofwaived, (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). Notwithstanding The initial expiration date of the foregoingOffer shall be 20 business days following commencement of the Offer (such date and time, but subject to the parties’ respective rights to terminate this Agreement as may be extended in accordance with Section 8.1the terms hereof, Sub shallis referred to as the "Expiration Date"); provided, upon the written request of the Company at least one business day before the then-scheduled expiration datehowever, and notwithstanding 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, Company (ix) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, if any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is have not been satisfied, for up the minimum period of time necessary to two periods of ten satisfy such condition; (10y) business days per extension or (iii) extend the Offer for any period required by any order, decree or ruling of, or any rule, regulation regulation, interpretation or interpretation 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 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, payment therefor by wire transfer of immediately available funds to an account in the United States designated in writing by such holder at the time such shares are tendered pursuant to the Offer.
(b) As soon as practicable on the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO shall 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 as to form in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by 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 Sub agree to the Purchaser will take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of the Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of the Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 false or and misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule TO and any amendment thereto 14D-1 before it is filed with the SEC. In addition, and the Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Purchaser will provide the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company counsel in writing with any comments, whether written or oral, that the Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Ibp Inc), Merger Agreement (Foodbrands America Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VIII hereof and none of the events described set forth in any Annex I hereto (the "Tender Offer Conditions") shall have occurred, as promptly as practicable but in no event later than the fifth business day from the date of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Sub shall, and Parent shall cause Sub the Purchaser to, and the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the “"Exchange Act”")) the Offer within ten to purchase all outstanding Shares at the Offer Price and shall file all necessary documents with the Securities and Exchange Commission (10the "SEC") business days following in connection with the date hereofOffer (together with any amendments or supplements to the "Offer Documents"). The obligations Offer shall remain open until at least the twentieth business day after the commencement of Sub the Offer. Purchaser shall disseminate to holders of Common Shares the Offer Documents to the extent required by law. The obligation of the Purchaser to accept for payment and to or pay for any Shares validly tendered 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 pursuant thereto will be subject only to the satisfaction of the conditions set forth in Annex III I hereto. Subject to .
(b) Without 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the Offer; providedCompany, however, that Sub the Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought to be purchased in the Offer, waive or change impose additional conditions to the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify Offer or amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of Shares or reduce the Company Common Stocktime period during which the Offer shall remain open. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of all the Tender Offer Conditions as of any expiration date, impose any conditions the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a as soon as practicable after such expiration 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, but subject the Purchaser shall be entitled to extend the Offer, if at the initial expiration of the Offer, or any extension thereof, any condition to the parties’ respective rights Offer is not satisfied or waived, and Parent agrees to terminate this Agreement cause the Purchaser to extend the Offer up to 40 days in accordance with Section 8.1the aggre- gate, Sub shallin one or more periods of not more than 10 business days, upon if, at the written request initial expiration date of the Offer, or any extension thereof, any condition to the Offer set forth in paragraphs (a), (b) or (g) of Annex I is not satisfied or waived; provided, however, that the Purchaser shall not be required to extend the Offer as provided in this sentence unless, in Parent's reasonable judgment, (i) each such condition is reasonably capable of being satisfied and (ii) the Company at least one business day before is in material compliance with all of its covenants under this Agreement. In addition, without limiting the then-scheduled expiration dateforegoing, and the Purchaser may, without the consent of the Company, (i) extend if, on the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration 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 I hereto) but equal to less than 90% of the 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 any of the conditions to the Offer (other than those set forth in paragraphs (a), (b) or (d) of Annex III hereto (other than the Minimum ConditionI) shall that subsequently may not be satisfied or waived for up to two periods during any such extension of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition addition, the Offer Price may be increased and the Offer may be extended to the foregoing and excluded from any extent required by law in connection with such limitations, Sub also may provide a “subsequent offering period” increase in accordance with Rule 14d-11 under each case without the Exchange Actconsent of the Company.
(bc) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under Purchaser represent that the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 the provisions of applicable federal securities laws and, on the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be date filed with the SEC andand on the date first published, subject sent or given to the Company’s compliance with Section 1.2(c)'s stockholders, disseminated shall not contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements made therein, in each case as 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 material amendments thereto prior to the extent required by applicable Lawfiling thereof with the SEC. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. Parent and Sub the Purchaser further agree 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 Lawfederal securities laws. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by Purchaser will provide the Company and its legal counsel. In addition, counsel with a copy of any written comments or telephonic notification of any oral comments Parent and Sub agree to provide the Company with any comments, whether written or oral, that Parent, Sub or their counsel Purchaser may receive from time to time prior to the expiration or termination of the Offer, received from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, thereof and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of will provide the Company and its legal counsel with respect theretoa copy of any written responses and telephonic notification of any oral responses of Parent, Purchaser or their counsel.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (United States Filter Corp), Merger Agreement (United States Filter Corp)
The Offer. (a) Provided that this Agreement shall not have previously been validly terminated in accordance with Section 8.1 and none its terms, as promptly as practicable following the date of the events described this Agreement (but in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subno event later than October 4, 2010), Sub shall, and Parent shall cause Sub Purchaser to, and Purchaser shall, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten for all (10or, solely in the circumstances described in Section 2.1(e)(ii), the Reduced Purchase Amount) business days following of the date hereof. The obligations of Sub to accept outstanding Company Shares for payment and to pay for any Shares validly tendered and not withdrawn prior a price per Company Share equal to the expiration of the Offer Per Share Amount (as it may be extended adjusted as provided in accordance with requirements of this Section 1.1(a2.1(h)) shall be subject only to the conditions set forth in Annex III hereto. 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”) 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 contains contain the terms and conditions set forth in this Agreement and Annex A. The date on which Purchaser commences the conditions 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) Subject to the extension rights of the parties set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditionsthis Agreement, to increase the Offer Price and shall be subject only to make any other changes in the terms satisfaction or waiver of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any each of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition A (the “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, in each case in any manner adverse to the holders of the Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, (i) all Company Common Stock, impose any conditions Shares validly tendered pursuant to the Offer that are (and not set forth on Annex III heretoproperly withdrawn) or (ii) in the circumstances contemplated by Section 2.1(e)(ii), or extend Company Shares representing the Offer beyond a Reduced Purchase Amount (such date that is twenty-one (21) business days after commencement of acceptance for payment, the “Acceptance Time”). Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any Company Shares that Purchaser becomes obligated to purchaser pursuant to the 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 Parent and Purchaser expressly reserves the right from time to time, in its sole and absolute discretion, to increase the Per Share Amount, waive any Tender Offer Condition or amend, modify or supplement any of the last extension (as permitted in accordance with this Section 1.1), if any, Tender Offer Conditions or terms of the Offer. Notwithstanding anything to the contrary contained in this Agreement, whichever is later (the “Expiration Date”) except as set forth belowneither Parent nor Purchaser shall, in each case without the prior written consent of the Company and except as otherwise permitted or required by Sections 2.1(d)-(f):
(such consent i) change or waive the Minimum Condition;
(ii) decrease the number of Company Shares sought to be authorized purchased by Purchaser in the Offer;
(iii) reduce the Per Share Amount;
(iv) extend or otherwise change the Expiration Date of the Offer;
(v) change the form of consideration payable in the Offer;
(vi) amend, modify or supplement any of the Tender Offer Conditions (other than to waive such Tender Offer Conditions); or
(vii) amend, modify or supplement terms of the Offer in a manner that adversely affects the holders of Company Board Shares in their capacities as holders of Directors or a duly authorized committee thereofCompany Shares.
(d) Unless the Offer 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, but subject to unless the parties’ respective rights to terminate this Agreement is terminated 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 Companyterms hereof, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) Purchaser shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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, interpretation or interpretation position of the United States Securities and Exchange Commission SEC or its staff or the NASDAQ Global Market (“SECNasdaq”), or the staff thereof, ) 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. In addition 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 Offer shall not be terminated prior to the foregoing Outside Date, unless this Agreement is validly terminated in accordance with Section 9.1, in which case Purchaser shall (and excluded from 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. Nothing in this Section 2.1(d) shall affect any termination rights in Section 9.1.
(e) 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 the number of Company Shares validly tendered in the Offer and 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 limitationsCompany Shares issued upon exercise of the Top-Up Option) (the “Short-Form Merger Threshold”), Sub also 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, 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 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 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 accordance with 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, all such Company Shares. Without limiting the generality of the foregoing, Parent shall provide or cause to be provided 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, 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 such subsequent offering period (or extension thereof).
(bh) On 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 promptly as reasonably practicable on the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”)) with respect to the Offer. The Schedule TO shall include, as exhibits, contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially Purchaser shall use its reasonable steps necessary best efforts 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, Company Shares in each case as and all material respects to the extent required by applicable Lawfederal securities laws. Parent and SubPurchaser 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. Parent, on the one hand, Purchaser and the Company, on the other hand, Company 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 or as otherwise required by Law. respect, and Parent and Sub Purchaser further agree to take all steps necessary use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the other Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.so correcte
Appears in 2 contracts
Sources: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VIII and that none of the events described set forth in any of paragraphs Paragraph (a) or (b2) of Annex III Exhibit A hereto shall exist or have occurred and be continuing (unless waived by Parent or Sub)continuing, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, use reasonable best efforts to 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”)) prior to the Offer within ten fifth (105th) business days following 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 period) the Offer to purchase all outstanding Shares at the Offer Price. The obligations of Sub Purchaser (and of Parent to cause Purchaser) to accept for payment and to pay for any Shares validly tendered and not withdrawn prior pursuant 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 the satisfaction or waiver of those conditions set forth in Annex III hereto. 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 Exhibit A hereto (the “Offer to PurchaseConditions”). The initial expiration date (the “Initial Expiration Date”) that contains of the terms set forth in this Agreement Offer shall be the twentieth (20th) Business Day following (and including the conditions set forth in Annex III heretoday of) the commencement of the Offer. Parent 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 of such conditions, to increase the Offer Price and to make any other changes in Condition or modify or amend the terms of the Offer; provided, howeverexcept that, that Sub without the prior written consent of the Company, Purchaser shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of the consideration payable in which any component of the Offer Price is payableOffer, or, except pursuant to Section 1.1(b), (A) decrease the number of Shares sought in pursuant to the Offer, (B) amend or waive or change the Minimum Tender Condition (as defined in Annex III heretoExhibit A), modify or amend any of (C) add to the conditions set forth on Exhibit A, (D) modify the conditions set forth on Exhibit A in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any a manner that is adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, Shares or (E) extend the Offer beyond a expiration 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 required or permitted by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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, (i1.1(a)(ii) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Genelabs Technologies Inc /Ca), Merger Agreement (Glaxosmithkline PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable after the date hereof, but in accordance with Section 8.1 and none no event later than the fifth business day after the public announcement of the events described in any execution of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)this Agreement, Sub shall, and Parent shall cause Sub to, 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 "OFFER") to purchase for cash all issued and outstanding shares, together with the rules and regulations promulgated thereunderassociated rights to purchase Series B Participating Cumulative Preferred Stock ( collectively, the “Exchange Act”"SHARES") of common stock, $.00l par value per share, of the Company (the "COMMON STOCK") at a price of $20 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to as the "OFFER PRICE")) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 to only to the those conditions set forth in Annex III hereto. 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 A (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 to waive any of such conditions, to increase the Offer Price and to make any other changes which may be waived by Merger Subsidiary in the terms of the Offerits sole discretion; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 mayprovided that, without the consent of the Company, Merger Subsidiary shall not waive the Minimum Tender Condition (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth as defined in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”A), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act).
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the Securities and Exchange Commission (the "SEC, pursuant ") with respect to Regulation M-A under the Exchange Act (“Regulation M-A”), Offer a Tender Offer Statement on Schedule TO with respect to 14D-1 (the Offer (together with all amendments"SCHEDULE 14D-1"), supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 which will comply in all material respects with all applicable the provisions of applicable federal securities laws and will contain the Exchange Actoffer 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 supplements or amendments thereto, are referred to herein collectively as the "OFFER Documents"). Parent will deliver copies of the proposed forms of the Schedule 14D-1 and the Offer Documents (as well as any change thereto) to the Company within a reasonable time prior to the commencement of the Offer for prompt review and comment by the Company and its counsel. Parent will provide the Company and its counsel in writing any comments 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. Parent and Sub agree to take all commercially reasonable steps necessary to cause Merger Subsidiary represent that the Schedule 14D-1 and the Offer Documents (including any amendments or supplements thereto) (i) shall comply as to be 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 andand at the time the Offer is consummated and in the case of the Offer Documents when first published, subject sent or given to the Company’s compliance with Section 1.2(c)stockholders of the Company and at the time the Offer is consummated, disseminated contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements therein, in each case light of the circumstances under which they are made, not misleading; provided, however, that Parent and Merger Subsidiary make no covenant, representation or warranty as to any of the information relating to and to supplied by the extent required by applicable LawCompany in writing specifically for inclusion in the Schedule 14D-1 or the Offer Documents (including any amendments or supplements thereto). Parent and Sub, on the one hand, and the Company, on the other hand, agree to Merger Subsidiary shall promptly correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the such Schedule 14D-1 or Offer Documents as so corrected to be filed with the SEC and disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable Lawlaw. The Parent and Merger Subsidiary will provide copies of any amendments or supplements to the Offer Documents or the Schedule 14D-1 to the Company shall be given 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 on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretothereon.
(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 Shares, impose additional conditions to the 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 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 Sub promptly following Merger Subsidiary on a timely basis the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly accept for payment, and pay in full in cash the aggregate Offer Price for those for, Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is Merger Subsidiary becomes obligated to accept for payment payment, and pay for, pursuant to the Offer and permitted to Offer.
(e) Merger Subsidiary shall accept for payment under applicable Lawpayment, and pay for, Shares in accordance with the Offer, subject to the satisfaction or waiver of 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 this Agreement --------- shall not have been terminated in accordance with Section 8.1 7.01 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III A hereto shall have occurred and or be continuing (unless waived by Parent or Sub)existing, Sub shall, and Parent Purchaser shall cause Sub to, 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”)) the Offer within ten (10) business days following as promptly as reasonably practicable 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. The obligations obligation of Sub Purchaser to accept for payment and to pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any Shares of their affiliates, shall have been validly tendered 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)) and also shall be subject only to the satisfaction of the other conditions set forth in Annex III A hereto. 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 Purchaser expressly reserves the right to waive any of such conditionscondition, to increase the Offer Price price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that Sub shall not, the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and Parent shall cause Sub not to, decrease provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer Price or change which reduces the form of consideration in which any component of the Offer Price is payable, decrease the maximum number of Shares sought to be purchased in the Offer, waive Offer or change which imposes conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto or otherwise modify or amend any other term or condition A hereto. The 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. Subject to the terms and conditions of the Offer, in each case in any manner adverse to the holders of the Company Common StockPurchaser shall pay, 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 as promptly as practicable 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall for all Shares validly tendered and not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Actwithdrawn.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Sub Purchaser shall file with the Securities and Exchange Commission (the "SEC, pursuant to Regulation M-A under the Exchange Act ")
(“Regulation M-A”), i) a Tender Offer Statement on --- Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments, amendments and supplements and exhibits thereto, the “"Schedule TO”13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule TO 14D-1 and the Schedule 13E-3 shall includecontain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, as exhibitsthe Schedule 13E-3, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"Offer Documents”"). Subject Gambro, Parent, Purchaser and the --------------- Company agree to Section 5.2, the Company hereby consents to the inclusion correct promptly any information provided by any of them for use in the Offer Documents of the recommendation which shall have become false or misleading, 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 provisions of the Exchange Act. Gambro, Parent and Sub Purchaser further agree to take all commercially reasonable 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, subject and the other Offer Documents as so corrected to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Ren Corp Usa), Merger Agreement (Cobe Laboratories Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III I hereto shall have occurred and be continuing (unless waived by Parent or Sub)continuing, Sub shall, and Parent Purchaser shall cause Sub to, 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”")) the Offer within as promptly as practicable (and in any event not later than ten (10) business days days) following the date hereof. The obligations of Sub Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares then actually owned by Yahoo! or Purchaser or any direct or indirect wholly owned subsidiary of Yahoo!, represents at least a majority of the Shares outstanding on a Fully Diluted Basis (as it may be extended in accordance with requirements of this Section 1.1(athe "Minimum Condition"); and (ii) shall be subject only to the other conditions set forth in Annex III I hereto. For purposes of the 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 each case that have a conversion or exercise price per share less than the Offer Price. Subject to the prior satisfaction or waiver by Parent Yahoo! or Sub Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex III I hereto, Sub shall, and Parent Purchaser 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 Agreement, the Minimum Condition and the other conditions set forth in Annex III I hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub Purchaser shall not, and Parent Yahoo! shall cause Sub Purchaser not to, decrease the Offer Price or Price, change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease the number of Shares sought in the Offer, waive or change impose additional conditions to the Minimum Condition Offer, extend the offer beyond the date that is twenty (as defined in Annex III hereto), modify or amend any 20) business days after commencement of the conditions Offer (the "Initial Expiration Date") except as set forth in Annex III hereto or otherwise modify below, or amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of the Company 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 belowShares, in each case without the prior written consent of the Company Launch (such consent to be authorized by the Company Launch's Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 Purchaser may, without the consent of the CompanyLaunch, (i) extend the Offer beyond the initial expiration date 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 any the scheduled (or extended) expiration of the Offer, Yahoo! and Purchaser shall not be in material breach of this Agreement and any of the conditions set forth in Annex III hereto (other than the Minimum Condition) to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waived for up to two periods and such condition is reasonably capable of not more than ten (10) business days per extensionbeing satisfied, or (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 or interpretation of the United States Securities and Exchange Commission (“"SEC”"), or the staff thereof, applicable to the Offer. In addition to Purchaser may, without the foregoing and excluded from any such limitationsconsent of Launch, Sub also may provide extend the Offer for a “subsequent offering period” period of up to twenty (20) business days in accordance with Rule 14d-11 under the Exchange Act. 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 Launch.
(b) On the date of commencement of the OfferOffer is commenced, Parent Yahoo! and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“"Regulation M-A”"), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “"Schedule TO”"). The Schedule TO shall includeinclude the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Yahoo! 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 provisions of the Exchange Act. Parent and Sub Purchaser 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), and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Parent Yahoo! and SubPurchaser 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; 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 the CompanyLaunch, 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 respect or as otherwise required by Lawlaw. Parent Yahoo! and Sub Purchaser further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company Launch and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent Yahoo! and Sub Purchaser agree to provide the Company Launch and its counsel with any comments, whether written or oral, that ParentYahoo!, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer DocumentsDocuments promptly after Yahoo!'s or Purchaser's, promptly upon as the case may be, receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1 and none a failure to satisfy any of the events described conditions set forth in any of paragraphs Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, but in no event later than the first Business Day (a) or (bas defined in Rule 14b-1(c)(6) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities and Exchange Act of 1934, as amended (the "Exchange Act")), following the execution of this Agreement, issue a public announcement of the execution of this Agreement and as promptly as practicable, 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 outstanding shares of common stock, par value $.01 per share together with attached rights to purchase shares (the rules and regulations promulgated thereunder"Shares"), of the “Exchange Act”)Company at a price of $12.50 per Share, net to the seller in cash. Such Offer shall remain open for a period not to exceed 30 Business Days (the "Offer Period") subject to extension as provided below. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority (as it may the "Minimum Condition") of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) (other than options to be extended in accordance with requirements of this canceled pursuant to Section 1.1(a)) shall 2.5 hereof, and Shares to be subject only issued pursuant to the Stock Option Agreement defined herein) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") and to the other conditions set forth in Annex III hereto. 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 I hereto. Parent and Merger Subsidiary expressly reserves reserve the right to waive any of such conditions, the conditions to increase the Offer Price and to make any other changes change in the terms or conditions of the Offer; provided, provided however, that Sub shall notthat, and Parent shall cause Sub not towithout the written consent of the Company, decrease no change may be made which (i) except as provided in the Offer Price or change next sentence, extends the Offer; (ii) changes the form of consideration in which any component of to be paid for the Offer Price is payableShares, decrease (iii) decreases the price per Share or the number of Shares sought in the Offer, waive or change (iv) imposes conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto I, (v) changes or otherwise modify waives the Minimum Condition, or amend (vi) makes any other term or change to any condition of to the Offer, Offer set forth in each case in any manner Annex I which is materially adverse to the holders of the Company 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)Shares. Notwithstanding the foregoing, 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, Merger Subsidiary may (i) extend the Offer beyond Period until all of the initial expiration date ifconditions to the Merger Subsidiary's obligation to purchase Shares shall be satisfied or waived, at including, without limitation, any scheduled period required (A) by any rule, regulation, interpretation, or extendedposition of the Securities and Exchange Commission (the "SEC") expiration 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, any of (ii) extend the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived Offer Period for up to two periods a period of not more than ten 10 Business Days beyond the expiration thereof, as such may be extended pursuant to subparagraph (10i) business days per extensionhereof, (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 Period for any an additional period required of not more than 10 Business Days beyond that permitted by any rule, regulation or interpretation of the United States Securities subparagraphs (i) and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(bii) On hereof if on the date of commencement such extension, less than ninety percent (90%) of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Fully Diluted Shares that 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. Subject to the terms of the Offer and that Sub is obligated this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions of the Offer, Merger Subsidiary shall accept for payment pursuant to the Offer all Shares validly tendered and permitted to accept for payment under applicable Law.not
Appears in 2 contracts
Sources: Merger Agreement (Centris Group Inc), Merger Agreement (HCC Insurance Holdings Inc/De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto no event shall have occurred and be continuing no circumstance shall exist which would result in a failure to satisfy any of the conditions or events set forth in Annex A hereto (unless waived by Parent or Subthe "Offer Conditions"), Sub Purchaser shall, as soon as reasonably practicable after the date hereof (and Parent shall cause Sub toin any event within five business days from the date of public announcement of the execution hereof), commence an offer (within the meaning "Offer") to purchase for cash all of Rule 14d-2 under the Securities Exchange Act issued and outstanding shares of 1934Common Stock, par value $.14 2/3 per share (referred to herein as amended (together with either the rules and regulations promulgated thereunder"Shares" or "Company Common Stock"), of the “Exchange Act”)) Company at a price of $80.00 per Share, net to the Offer within ten (10) business days following the date hereofseller in cash. The obligations obligation of Sub Purchaser to accept for payment and to pay for any Shares validly tendered and not withdrawn prior pursuant 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 the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub Purchaser 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 OfferConditions. 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 Purchaser expressly reserves the right right, in its sole discretion, to waive any of such conditions, to increase condition (other than the Minimum Condition as defined in the Offer Price Conditions) and to make any other changes in the terms or conditions of the Offer; provided, howeverprovided that, that Sub shall notunless previously approved by the Company in writing, and Parent shall cause Sub not tono change may be made which decreases the price per Share payable in the Offer, decrease the Offer Price or change changes the form of consideration payable in which any component of the Offer Price is payable(other than by adding consideration), decrease reduces the maximum number of Shares sought to be purchased in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any the Offer Conditions or otherwise amend the Offer in a manner adverse to holders of the Shares. Purchaser covenants and agrees that, subject to the terms and conditions set forth of this Agreement, including but not limited to the Offer Conditions, 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 right, in Annex III hereto or otherwise modify or amend any other term or condition its sole discretion, to extend the Offer for up to five business days, notwithstanding the prior satisfaction of the Offer, in each case in any manner adverse order to attempt to satisfy the holders requirements of Section 253 of the Company Common Stock, impose any conditions to DGCL. It is agreed that the Offer that Conditions are not set forth on Annex III hereto, or extend for the Offer beyond a date that is twenty-one (21) business days after commencement benefit of Purchaser and may be asserted by Purchaser regardless of the Offer circumstances giving rise to any such condition (except for any action or the last extension (as permitted in accordance inaction by Purchaser or Parent constituting a breach of this Agreement) or, except 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 respect to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not , may be satisfied waived by Purchaser, in whole or waived for up to two periods of not more than ten (10) business days per extension, (ii) in part at any time and from time to time, extend in its sole discretion. Purchaser further agrees that the Holding Co. Merger and the Woodbank Merger will not be closed until the Offer if at Conditions are otherwise satisfied or waived by Purchaser, and immediately prior to 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 or interpretation purchase of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable Shares by Purchaser pursuant to the Offer. In addition Purchaser agrees that, so long as this Agreement is in effect and all of the Offer Conditions are satisfied other than the conditions to the foregoing Offer set forth in clause (h) of Annex A and excluded from any the Minimum Condition, at the request of the Company the Purchaser, at its option, shall extend the Offer until the earlier of (1) such limitationstime as such conditions are satisfied or waived, Sub also and (2) 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 provide a “subsequent offering period” request further extensions up until the Outside Date if the Offer Conditions set forth in accordance with Rule 14d-11 under clause (h) and the Exchange ActMinimum Condition are still the only Offer Condition not satisfied unless this Agreement has been terminated pursuant to the provisions of Article VIII.
(b) On As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer with the Securities and Exchange Commission (together with all amendments, supplements and exhibits thereto, the “Schedule TO”"SEC"). The Schedule TO 14D-1 shall include, as exhibits, the contain an Offer to Purchase and a form forms of the related letter of transmittal (which Schedule 14D-1, Offer to Purchase and summary advertisement (collectivelyother documents, together with any supplements or amendments and supplements thereto, are referred to herein collectively as the “"Offer Documents”"). Subject to Section 5.2, Parent and Purchaser agree that the Company hereby consents and its counsel shall be given an opportunity to review the inclusion Schedule 14D-1 before it is filed with the SEC. Parent, Purchaser and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents of the recommendation that shall have become false or misleading in any material respect, 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 provisions of the Exchange Act. Parent and Sub Purchaser further agree to take all commercially reasonable steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and, subject and the other Offer Documents as so corrected to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Dillard Department Stores Inc), Merger Agreement (Mercantile Stores Co Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VII and none subject to the conditions of this Agreement, then (i) not later than the events described in any first Business Day after execution of paragraphs this Agreement, LUKOIL Americas and the Company shall issue mutually acceptable public announcements regarding the execution of this Agreement and file such announcement with the Securities and Exchange Commission (athe "SEC") or under cover of Schedule TO and (bii) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Merger Sub shall, and Parent LUKOIL Americas shall cause Merger Sub to, commence (within as soon as practicable, but in no event later than seven Business Days from and after the meaning date of such announcement, including the date of announcement as the first Business Day in accordance with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”"), commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer within ten to purchase all of the outstanding shares of Company Common Stock (10other than as otherwise provided in this Agreement) business days following at the Price Per Share. The initial expiration date of the Offer shall be the twentieth Business Day from and after the date hereofthe Offer is commenced, including the date of commencement as the first Business Day in accordance with Rule 14d-2 under the Exchange Act subject to extension as provided herein. The obligations Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions consistent with this Agreement. The obligation of Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock tendered pursuant to the Offer in accordance with the terms of this Agreement shall be subject only to (x) there being at least that number of shares of Company Common Stock representing a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis (the "Minimum Shares") validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements the "Minimum Condition") and (y) the satisfaction of this Section 1.1(a)) shall be subject only to the other conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III A 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 to waive any of such conditions, to increase the Offer Price and to make any other changes which conditions may be waived by Merger Sub in the terms of the Offerits sole discretion; provided, however, that Merger Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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. Each party agrees that no shares of Company (such consent Common Stock held by it or any of its Subsidiaries will be tendered to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject Merger Sub pursuant to the parties’ respective rights Offer.
(b) Merger Sub expressly reserves the right to terminate this Agreement in accordance with Section 8.1, Sub shall, upon modify the written request terms of the Company at least one business day before the then-scheduled expiration dateOffer, and mayexcept that, without the prior written consent of the Company, Merger Sub will not (i) extend decrease the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of Price Per Share payable in the Offer, any (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in Annex III A hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable impose additional conditions to the Offer. In addition to , (iv) change the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the expiration date of commencement the Offer or (v) otherwise amend or add any term or condition of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with in any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 manner adverse in any material respect or as otherwise required by Law. 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 disseminated to holders of Sharesshares of Company Common Stock; provided, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 oralhowever, that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and if on any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.scheduled
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Getty Petroleum Marketing Inc /Md/), Merger Agreement (Lukoil Americas Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of Article IX, as promptly as practicable after the events described in any of paragraphs date hereof, Merger Sub shall (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Merger Sub to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act, a tender offer (the “Offer”) to purchase all of 1934the outstanding shares of Company Common Stock at a price per share equal to $9.40 net to seller in cash, as amended without interest (together such amount or any higher amount per share of Company Common Stock paid pursuant to the Offer in accordance with the rules and regulations promulgated thereunderthis Agreement, the “Exchange ActOffer Price”)) , subject to any deduction or withholding of Taxes in accordance with Section 3.01(h), on the Offer within ten (10) business days following terms and subject to the date hereofconditions set forth in this Agreement. The obligations consummation of the Offer, and the obligation of Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock validly tendered and not withdrawn prior pursuant to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) Offer, shall be subject only to: (i) there 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 conditions set forth in Annex III hereto. Subject 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 prior satisfaction number of shares of Company Common Stock then owned by Parent, Merger Sub or waiver any of their respective “affiliates” (as defined by Parent or Sub Section 251(h)(6) of conditions set forth in Annex III heretothe DGCL), Sub shallrepresents fifty-one percent (51%) of the shares of Company Common Stock then outstanding (the “Minimum Condition”), and Parent shall cause Sub to, consummate the Offer (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 this Agreement, of the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) at or as promptly as practicable following the Expiration Time (in any event, no later than the second Business Day immediately following the date on which the Expiration Time occurs), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the Expiration Time (in any event, no later than the third Business Day immediately following the date on which the Expiration Time occurs), pay the aggregate Offer Price (by delivery of funds to the depositary for the Offer) for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The Parties agree that the Offer and Merger Sub’s obligation to accept for payment and pay for all Shares shares of Company Common Stock validly tendered and not validly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Offer in accordance with the foregoing are not, and shall not be, subject to any condition other than the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains describes the terms set forth and conditions of the Offer in accordance with this Agreement and Agreement, including the conditions set forth in Annex III heretoOffer Conditions. Parent Merger Sub expressly reserves the right (in its sole discretion) to waive any of such conditions, to (i) increase the Offer Price Price, (ii) waive any Offer Conditions (other than the Minimum Condition, the Termination Condition and to the Antitrust Condition) and (iii) make any other changes in to the terms and conditions of the Offer not inconsistent with the terms of the Offerthis Agreement; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or unless otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company 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 (21provided by this Agreement) 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, Merger Sub shall not (and Parent shall cause Merger Sub not to) (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) change, modify or waive the Termination Condition, the Minimum Condition or the Antitrust Condition, (iv) add to the conditions set forth in Exhibit B or modify or change any Offer Condition in a manner adverse in any material respect to any holders of Company Common Stock of the Company, (v) except as otherwise provided in this Section 2.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any holders of Company Common Stock of the Company.
(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 (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 consent time, the “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 authorized 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 (5) 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 Board a written notice of Directors or a duly authorized committee thereof)the Company’s election that Merger Sub not so extend the Offer, Merger Sub shall not (and Parent shall not permit Merger Sub to) extend the Offer beyond such scheduled Expiration Time. Notwithstanding anything to the contrary in the foregoing, but subject (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) extend the Offer if all Offer Conditions have been satisfied and (C) Merger Sub shall extend the Offer for any period or periods required by Applicable Law, including applicable rules, regulations, interpretations or positions of the SEC or its staff, or the New York Stock Exchange. In addition, notwithstanding anything in this Agreement to the parties’ respective rights contrary, (1) Merger Sub may from time to terminate this Agreement time, 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 mayits sole discretion, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for on up to two periods of not more than three (3) separate occasions for ten (10) business days per extensioneach (for this purpose, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” calculated in accordance with Rule 14d-11 14d-1(g)(3) under the Exchange Act), if, as of any scheduled Expiration Time, (x) Parent and Merger Sub shall have waived the Funding Condition, (y) all of the other Offer Conditions (other than the Minimum Condition and the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the Expiration Time) have been satisfied or, in Merger Sub’s sole discretion, waived (to the extent such Offer Condition is permitted to be waived pursuant to this Agreement and Applicable Law) at such time and (z) the proceeds of the Financing have not actually been received by Merger Sub or TopCo Parent (either directly or through any of TopCo Parent’s Subsidiaries) and the Financing Sources have not unconditionally and irrevocably confirmed in writing to TopCo Parent, Parent or Merger Sub that all of the Financing will be available at the Offer Closing on the terms and conditions set forth in the Financing Letters, and (2) if the Funding Condition has been satisfied or waived by Parent and Merger Sub, then Merger Sub shall, if required by the Exchange Act, cause the Offer to be extended for a period of five (5) business days (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act).
(bf) On Merger Sub shall not (and Parent shall cause Merger Sub not 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 (1) 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, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
(h) As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, include as exhibits, exhibits (without limitation) the Offer to Purchase and Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement and a form of notice of guaranteed delivery (collectivelythe 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”). Subject The Company shall promptly furnish to Section 5.2, Parent all information concerning the Company hereby consents and its Affiliates required by the Exchange Act to the inclusion be set forth in the Offer Documents of the recommendation Documents. Parent and the approval of Merger Sub shall be entitled to include the Company Board of Directors referred to Recommendation in Section 3.20(a). The the Offer Documents will comply in all material respects with all applicable provisions of the Exchange ActDocuments. Parent and Merger 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), and disseminated to holders of SharesCompany Common Stock, in each case as and to the extent required by applicable Lawall Applicable Laws, including the Exchange Act. If, prior to the Acceptance Time, any event occurs with respect to Parent and Subor any Affiliate of Parent, or any change occurs with respect to other information included by Parent in the Offer Documents (other than information supplied by the Company for inclusion therein), on the one hand, and 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, agree 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 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 or as otherwise required by Applicable Law. 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 disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable Lawthe Exchange Act. 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 be given a provide the Company with copies of all correspondence between Parent and its respective Representatives, on the one hand, and the SEC, on the other hand. Parent shall 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 Schedule TO proposed final version of such document or response) and (ii) consider in good faith all comments reasonably proposed by the Company. Parent and Merger Sub shall also take any amendment thereto before other action (other than qualifying to do business in any jurisdiction in which it is filed not now so qualified) required to be taken under the Exchange Act or any applicable foreign or state securities laws and the rules and regulations thereunder in connection with the SEC, Offer and Parent the Merger.
(i) For purposes of this Agreement and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect unless agreed by Parent and Merger Sub, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer Documents, promptly upon receipt unless and until the shares underlying such notices of such comments, and any written or oral responses thereto, and the Company shall have the right guaranteed delivery are delivered to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretoMerger Sub.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
The Offer. (a) Provided that Subject to the provisions of this Agreement and provided that nothing shall not have been terminated occurred that would result in accordance with Section 8.1 and none a failure to satisfy any of the events described conditions set forth in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)ANNEX I hereto, Sub shall, and Parent shall cause Sub the Purchaser to, as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days following the initial public announcement of the Purchaser's intention to commence the Offer, commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder"Exchange Act")), the “Exchange Act”Offer for all of the outstanding Shares at a price of $18.00 per Share, net to the seller in cash, subject only (i) to a minimum of 2,649,538 Shares (or such other number of Shares, when added to the number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned Subsidiary (as defined in Section 1.3(a)) of Parent, as shall constitute a majority of the Offer within ten Company's Fully Diluted Shares (10as defined in Section 4.2) business days following (the date hereof. The obligations of Sub to accept for payment and to pay for any Shares "Minimum Shares") being validly tendered and not withdrawn prior to the expiration or termination of the Offer and not withdrawn (as it may be extended in accordance with requirements of this Section 1.1(a)the "Minimum Share Condition") shall be subject only and (ii) to the other conditions to the Offer set forth in Annex III hereto. Subject ANNEX I. The Purchaser may at any time transfer or assign to the prior satisfaction one or waiver more corporations directly or indirectly wholly owned by Parent the right to purchase all or Sub any portion 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 OfferOffer (the "Tendered Shares"), but no such assignment shall relieve the Purchaser of its obligations hereunder. 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 Purchaser expressly reserves the right to waive any of such conditions, the conditions to increase the Offer Price set forth in ANNEX I and to make any other changes in modify the terms and conditions of the Offer; PROVIDED, HOWEVER, that, without the prior written approval of the Company, the Purchaser shall not amend or modify the terms of the Offer to (i) reduce the cash price to be paid pursuant to the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease (ii) reduce the number of Shares as to which the Offer Price or is made, (iii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought to be paid in the Offer, (iv) modify or waive or change the Minimum Condition Share Condition, or (as defined in Annex III hereto), modify v) impose conditions to its obligation to accept for payment or amend any of pay for the conditions Tendered Shares other than those set forth in Annex III hereto or otherwise modify or amend any other term or condition ANNEX I. The Offer may not be extended without the Company's prior written consent; PROVIDED, HOWEVER, that the Purchaser may extend (and re-extend) the Offer for up to a total of 20 business days if, as of the initial expiration date, which shall be 20 business days following commencement of the Offer, in each case in any manner adverse there shall not have been validly tendered and not withdrawn that number of Shares necessary to permit the holders Merger to be effected without a meeting of the Company 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 Company's stockholders 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActDGCL.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Sub the Purchaser shall file with the Securities and Exchange Commission ("SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendmentsOffer, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO which shall include, as exhibits, the Offer contain or shall incorporate by reference an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (collectivelysuch Schedule 14D-1 and the documents included therein or incorporated therein by reference pursuant to which the Offer will be made, together with any supplements or amendments and supplements thereto, the “"Offer Documents”"). Subject to Section 5.2, Parent and the Company hereby consents to the inclusion in Purchaser agree that the Offer Documents of the recommendation and the approval of the Company Board of Directors referred shall comply as to in Section 3.20(a). The Offer Documents will comply form in all material respects with all applicable provisions of the Exchange Act. Parent , and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be rules and regulations promulgated thereunder, and, on the date filed with the SEC andand on the date first published, subject sent or given to the Company’s compliance with Section 1.2(c)'s stockholders, disseminated shall not contain any untrue statement of a material fact or omit to holders of Sharesstate any material fact required to be stated therein or necessary in order to make the statements therein, in each case as and 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 extent required by applicable LawCompany or any of its representatives which is included in the Offer Documents. Parent and SubEach of Parent, on the one hand, Purchaser and the Company, on the other hand, agree Company 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 respect or as otherwise required by Law. misleading, and each of Parent and Sub the Purchaser further agree agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and comment on the Schedule TO all amendments and any amendment supplements thereto before it is filed prior to their filing with the SEC, and SEC or dissemination to stockholders of the Company. Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub Purchaser agree to provide the Company with and its counsel any comments, whether written or oral, that comments Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 Subject to be provided to Sub promptly following the expiration terms and conditions of the Offer or any subsequent extension thereofOffer, as applicable, all funds necessary to promptly the Purchaser shall pay in full in cash the aggregate Offer Price for those Shares that which have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to as promptly as practicable following expiration of the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VIII, as promptly as practicable (and none of the events described in any of paragraphs event on or before January 8, 2014) after the date hereof, Acquisition Sub shall (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Acquisition Sub to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunderAct, the “Exchange Act”)) Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer within ten (10) business days following the date hereofPrice. The obligations consummation of the Offer, and the obligation of Acquisition Sub to accept for payment and to pay for any Shares 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 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 Offer shares of Common Stock then outstanding (as it may be extended determined on a fully diluted basis) (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with requirements of this Section 1.1(aits terms (the “Termination Condition”); and (iii) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction satisfaction, or waiver by Parent or Sub Acquisition Sub, of the other conditions and requirements set forth in Annex III heretoI (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 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, shall (and Parent shall cause Acquisition Sub to, consummate the Offer in accordance with its terms and ) accept for payment and pay for all Shares shares of Common Stock validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer 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 (the “Offer to Purchase”) that contains describes the terms set forth and conditions of the Offer in accordance with this Agreement Agreement, including the Offer Conditions. Unless previously approved by the Company in writing, Parent and Acquisition Sub shall not: (i) decrease the Offer Price, (ii) 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 III hereto. Parent expressly reserves the right I, (v) add any condition to waive any of such conditions, to increase the Offer Price and or any term that is adverse to make any other changes in the terms holders of Common Stock, (vi) extend the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component expiration of the Offer Price is payableexcept as required or permitted by this Section 2.1, decrease (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the number of Shares sought in the OfferExchange Act or (viii) modify, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify supplement or amend any other term or condition of the Offer, Offer in each case in any a manner adverse to the holders of the Company Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, impose any conditions to the Offer that are not set forth shall expire at 11:59 p.m. (New York City time) on Annex III hereto, or extend the Offer beyond a date that is twenty-one twenty (2120) business days after Business Days following the commencement of the Offer Offer, 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 last extension (as permitted Initial Expiration Date has been extended in accordance with this Section 1.1)Agreement, if anyon the date to which the Offer has been so extended (the Initial Expiration Date, of or such later time and date to which the OfferInitial Expiration Date has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) except If as set forth belowof 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 case 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 June 16, 2014 (the “Outside Date”) and shall not extend the Offer beyond the Outside Date without the Company’s consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NYSE; provided, however, that, subject to Section 8.1(b), Acquisition Sub shall not be required to extend the 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 Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (such consent to be authorized and Parent shall cause Acquisition Sub to) promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by the Company Board of Directors Acquisition Sub, or a duly authorized committee thereof). Notwithstanding the foregoing, but subject this Agreement is terminated prior to the parties’ respective rights Acceptance Time, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to terminate this Agreement return, in accordance with Section 8.1applicable Law, Sub shall, upon the written request all tendered shares of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend Common Stock that have not then been purchased in the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Actregistered holders thereof.
(bg) On As soon as practicable on the date of the commencement of the Offer, Parent and Acquisition Sub shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, include as exhibitsexhibits (without limitation), the Offer to Purchase and Purchase, a form of letter of transmittal transmittal, a form of summary advertisement, a form of notice of guaranteed delivery (the Schedule TO and summary advertisement (collectivelythe 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”). 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 provisions of the Exchange Act. Parent and Acquisition 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 Sharesshares of Common Stock, in each case as and to the extent required by all applicable LawLaws, including the Exchange Act. Parent and Acquisition Sub, 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 or as otherwise required by applicable Law. , and Parent and Acquisition Sub further agree to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by all applicable LawLaws, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Acquisition Sub shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Acquisition Sub agree to shall provide the Company and its counsel promptly with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Acquisition Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any proposed written or oral responses to such comments or communications, the Schedule TO and Offer Documents and Parent and Acquisition Sub shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel and to participate in any substantive telephonic communications with respect the staff of the SEC related thereto.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article IX, and none of the events described set forth in any of paragraphs (a) or ), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex III I hereto shall have occurred and be continuing continuing, as promptly as practicable and in any event within ten (unless waived by Parent or Sub)10) Business Days after the date hereof, Sub shall, and Parent MergerSub shall cause Sub to, 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”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered 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 the conditions set forth in Annex III hereto. 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 to waive any of such conditions, to increase all outstanding Company Common Shares at the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall notPrice, and Parent shall cause Sub not toshall, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 upon 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 but after affording the Company (such consent reasonable opportunity to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoingreview and comment thereon, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”). The Schedule TO shall include) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and make all deliveries, as exhibitsmailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all shall use its commercially reasonable steps necessary efforts to cause consummate the Offer Documents to be filed with the SEC andOffer, subject to the Company’s compliance with Section 1.2(c), disseminated terms and conditions thereof. Subject to holders the terms and conditions of Shares, in each case as this Agreement and to the extent required by applicable Law. Parent and Subsatisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”), on MergerSub shall, as soon as possible after the one handexpiration of the Offer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to the CompanyOffer and not withdrawn (the first date of acceptance for payment, on the other hand, “Acceptance Date”). 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 or as otherwise required by Law. Parent and Sub further agree to 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 LawFederal securities laws. MergerSub shall 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 from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereof. 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 Schedule TO and any amendment thereto before it is filed with prior written consent of the SECCompany, and Parent and Sub MergerSub shall give due not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to all reasonable additionsbe purchased in the Offer, 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 may receive from time to time prior 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 termination 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 with respect applicable to the Offer; or (3) if all of the Tender Offer Documents, promptly upon receipt of such commentsConditions 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 written or oral responses thereto, 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 shall have Common Shares in accordance with the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments terms of the Company and its legal counsel 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 respect thereto.
(c) Parent Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall provide or cause affect any termination rights in Article IX. Subject to be provided to Sub promptly following the expiration terms of the Offer or and this Agreement and the satisfaction of all the Tender Offer Conditions as of any subsequent extension thereofdate on which the Offer is scheduled to expire, as applicable, MergerSub will accept for payment and pay for all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Company Common Shares that have been validly tendered and not validly withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Lawas 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 As long as (i) this Agreement shall not have been terminated in accordance with Section 8.1 its terms and (ii) none of the events or conditions described in any of paragraphs (a) Exhibit 1 shall exist or (b) of Annex III hereto shall have occurred and be continuing (unless waived by Parent or Sub)continuing, Merger Sub shall, as promptly as practicable and Parent shall cause Sub toin no event later than ten (10) business days after the date hereof, 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 to purchase all of the Offer within ten outstanding shares of common stock, par value $0.10 per share (10the “Common Stock”), of the Company (the “Shares”) business days following the date hereof. The obligations at a price of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior $37.00 per Share in cash, net to the expiration seller but subject to any required withholding of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be Taxes, subject only to the conditions set forth in Annex III heretoExhibit 1 and the requirements of this Agreement (such tender offer and price as they may from time to time be amended in accordance with this Agreement, the “Offer” and the “Offer Price”, respectively). 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 Merger Sub’s right to extend the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following as permitted by this Agreement, the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means initially expire at midnight (New York City time) on the date which 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 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 Exhibit 1 are not satisfied or waived by Merger Sub as of any then scheduled expiration time for the right Offer, then Merger Sub may, from time to waive any of such conditionstime in its sole discretion, to increase extend the expiration time for the Offer Price and in maximum increments of 10 business days to make any other changes in no later than June 30, 2006 (the terms of the Offer“Outside Date”); provided, however, that notwithstanding the foregoing (i) Merger Sub shall notmay extend the Offer for any period required by any applicable Law (as defined in Section 5.1(i)) and (ii) 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 Exchange Act. Merger Sub expressly reserves the right to amend or modify the terms and conditions of the Offer in its sole discretion; provided, and Parent shall cause however, that notwithstanding the foregoing Merger Sub may not towaive the Minimum Condition, impose any conditions other than those set forth in Exhibit 1, 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 Price or below $37.00 per Share, change the form of consideration payable in which any component of the Offer Price is payableOffer, decrease reduce the number of Shares sought in the Offer, waive or change extend the Minimum Condition (Offer other than as defined in Annex III hereto), modify permitted by the immediately preceding sentence or amend any terms of the conditions set forth Offer in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any a manner adverse to the holders of the Company 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 belowShares, in each case without the prior written consent of the Company (such consent to be authorized by Company. On the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but terms and 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereofand this Agreement, as applicable, Merger Sub shall pay for 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 Offer and that Merger Sub is becomes obligated to accept for payment purchase pursuant to the Offer and permitted as soon as practicable after the expiration of the Offer. Merger Sub may, at any time, transfer or assign to accept for payment one or more Subsidiaries of Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Merger Sub of its obligations under applicable Lawthis Agreement or the Offer. Whenever this Agreement requires Merger Sub to take any action, such requirement shall be deemed to include an undertaking on the part of Parent that it will cause Merger Sub to take such action.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and 8.01 hereof, none of the events described in any of set forth on paragraphs (a) or through (bf) of Annex III hereto II shall have occurred and be continuing and the Company is prepared (unless waived in accordance with Section 1.02(c)) to file with the United States Securities and Exchange Commission (the “SEC”) the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the Agreement Date (and in any event no later than ten (10) Business Days after the date of initial public announcement of this Agreement, provided that the Company has so complied with the Pennsylvania Takeover Disclosure Law (to the extent actions are required to be taken by Parent or Subit) and is prepared to file with the SEC the Schedule 14D-9), 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 (together with including the rules and regulations promulgated thereunder, the “Exchange Act”)) ), the Offer within ten (10) business days following to purchase all of the date hereofoutstanding Shares at the Offer Price. The obligations obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered 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 scheduled expiration of the Offer (as it may be extended from time to time hereunder), and not properly withdrawn, a number of Shares that, together with the Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully Diluted Shares immediately prior to the Share Acceptance Time (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in accordance with requirements satisfaction of this Section 1.1(asuch guarantee) (the “Minimum Condition”), and (ii) shall be subject only to the conditions set forth in Annex III hereto. Subject to II (together with the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretoMinimum Condition, 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 PurchaseConditions”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto). Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive waive, in its sole and absolute discretion, in whole or in part, any of such conditions, to increase the Offer Price Conditions and to make any other changes change in the terms of or conditions to the Offer; provided, however, that Sub shall notunless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole and absolute discretion), and Parent shall cause Sub (A) the Minimum Condition may not tobe waived or amended, decrease (B) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change imposes conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto II, or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse amends
01. Subject to the holders terms and conditions of the Company Common Stockthis Agreement, impose any conditions to the Offer that are not set forth shall expire at midnight, New York City time, on Annex III hereto, or extend the Offer beyond a date that is twenty-one twenty (2120) business days after Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, the “Initial Expiration Date,” and such time, or such subsequent time to which the last extension (as permitted expiration of the Offer is extended in accordance with the terms of this Section 1.1)Agreement, 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, but subject anything in this Agreement to the parties’ respective rights to terminate contrary, unless this Agreement has been terminated in accordance with Section 8.18.01, (i) Merger Sub shall(or Parent on its behalf) may, upon the written request of the Company at least one business day before the then-scheduled expiration date, in its sole and mayabsolute discretion, without the consent of the Company, (i) extend the Offer beyond the initial expiration date ifon one or more occasions, at any scheduled (or extended) expiration in consecutive increments of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionBusiness Days each, for any period up to and including the Outside Date if on any then-scheduled Expiration Date any of the Offer Conditions has not been satisfied or waived in writing by Merger Sub (or Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived, (ii) from time to timeMerger Sub (or Parent on its behalf) may, extend in its sole and absolute discretion, without the Offer if at consent of the scheduled or extended Expiration Date the Minimum Condition is not satisfiedCompany, 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, interpretation or interpretation position of the United States Securities and Exchange Commission (“SEC”), SEC or the staff thereof, The NASDAQ Stock Market applicable to the Offer. In addition , (iii) except to the foregoing extent otherwise agreed in writing by the Company prior to any then-scheduled Expiration Date, Merger Sub (or Parent on its behalf) shall extend the Offer on one or more occasions, in consecutive increments of up to ten (10) Business Days each, up to and excluded from including the Outside Date, until the condition set forth in clause (ii) of the first paragraph of Annex II related to the HSR Act is satisfied or waived in writing by Merger Sub (or Parent on its behalf) and (iv) if on any scheduled Expiration Date, the Minimum Condition is not satisfied but all other Offer Conditions are satisfied, then Merger Sub (or Parent on its behalf) shall extend the Offer on a single occasion for a ten (10) Business Day period; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the Outside Date. Notwithstanding anything in this Agreement to the contrary, Merger Sub (or Parent on its behalf) may increase the Offer Price and extend the Offer up to and including the Outside Date to the extent required by Law in connection with such limitationsincrease, in each case, in its sole and absolute discretion and without the consent of the Company. Following the expiration of the Offer, Merger Sub also may (or Parent on its behalf) may, in its sole and absolute discretion, provide a “subsequent offering period” period or one or more extensions thereof (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act, if, as of the commencement of such period, there shall not have been validly tendered (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company in accordance with Section 1924(b)(1)(ii) of the Pennsylvania Business Corporation Law (the “Business Corporation Law”). Subject to the foregoing, including the requirements of Rule 14d-11 under the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable (within the meaning of Rule 14e-1(c) of the Exchange Act), (1) after the Expiration Date, all Shares validly tendered and not properly withdrawn pursuant to the Offer and/or (2) all Shares validly tendered in any Subsequent Offering Period. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Laws relating to Taxes. If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so tendered be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Certificate tendered, or required for any other reason relating to such holder or requesting Person, or shall have established to the satisfaction of Parent and Merger Sub that such Tax either has been paid or is not required to be paid. To the extent that amounts are so withheld and paid over to the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding were made by Merger Sub. Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company (in its sole and absolute discretion), except if this Agreement is terminated pursuant to Section 8.01. If the Offer is terminated by Parent or Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly (within the meaning of Rule 14e-1(c) of the Exchange Act) return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, and supplements thereto and including exhibits thereto, the “Schedule TO”). The Schedule TO ) with the SEC, which shall include, as exhibits, the contain an Offer to Purchase reflecting the material terms and conditions of this Agreement, and a form of the letter of transmittal and summary advertisement other ancillary Offer documents and instruments, if any, in respect of the Offer (together with the Schedule TO, collectively, together with any amendments and or supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, (ii) subject to the Company’s compliance with Section 1.2(c1.02(c), cause the Offer Documents to be disseminated to holders of Shares, in each case Shares as and to the extent required by applicable Law. The Company shall promptly furnish to Parent and SubMerger Sub in writing all information concerning the Company that may be required by applicable Law for inclusion in the Offer Documents. Each of Parent, on the one hand, Merger Sub and the Company, on the other hand, agree Company 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 or as otherwise required by Law. respect, and Parent and Merger Sub further agree to 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 Shares, in each case as as, and to the extent extent, required by applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Merger Sub shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Merger Sub agree to shall promptly provide the Company and its counsel with copies of any commentswritten comments or communications, whether written and shall inform them of any oral comments or oralcommunications, that Parent, Merger Sub or their counsel may receive from time to time prior to after the expiration or termination of the Offer, Agreement Date from the SEC or its staff with respect to the Offer Documents, Documents or otherwise with respect to the Offer promptly upon after receipt of such comments, and any written those comments or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral formother communications. The Company and its legal counsel shall be given a reasonable opportunity to review any written responses to such SEC comments or communications, and Parent and Merger Sub shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect theretocounsel.
(c) Parent shall provide or cause to be provided to Merger Sub promptly following on a timely basis 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 purchase any Shares that have been validly tendered and not withdrawn Merger Sub becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Orthovita Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (but in accordance with Section 8.1 and none no event later than five business days after the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub shall, and Parent Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer (the "Offer") to purchase for cash all shares of the issued and outstanding Common Stock, par value $.01 per share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company, at a price per Share, based upon the representations set forth in Section 3.2 hereof, of $24.59 net to the seller in cash (such price per Share, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which, together with the rules Shares beneficially owned by Parent or Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and regulations promulgated thereunderto the other conditions set forth in Annex A hereto. Purchaser shall, on the “Exchange Act”)terms and subject to the prior satisfaction or waiver (except that the Minimum Condition may not be waived) of the Offer within ten (10) business days following conditions of the date hereofOffer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of Sub Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex III A hereto. 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 containing the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions set forth in Annex III A hereto. Parent Purchaser expressly reserves the right to waive amend any of such conditions, to increase the Offer Price and to make any other changes in the terms and conditions of the Offer; provided, however, provided that Sub Purchaser shall not, and Parent shall cause Sub not toamend or waive the Minimum Condition, decrease the Offer Price or decrease the number of Shares sought, change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in to be paid pursuant to the Offer, waive or change impose conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto or otherwise modify A hereto, or amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, Shares or extend the Offer beyond a expiration 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 of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, but subject Purchaser shall, and Parent agrees to cause Purchaser to, extend the Offer for a period of ten (10) business days following the initial expiration date of the Offer, if any conditions to the parties’ respective rights to terminate this Agreement Offer have not been satisfied or waived at such date. In addition, following such first extension of the Offer as provided in accordance with Section 8.1the preceding sentence, Sub (i) Purchaser shall, upon and Parent agrees to cause Purchaser to, extend the written request Offer, at any time prior to the termination of this Agreement, for one or more periods of not more than ten business days, if at the expiration date of the Company at least one business day before Offer, as extended, all conditions to the then-scheduled expiration dateOffer have not been satisfied or waived, and (ii) 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 addition, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods a period of not more than ten (10) business days per extension, beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) from time of the immediately preceding sentence if there shall not have been tendered and not withdrawn pursuant to time, extend the Offer if at least 90% of the scheduled or extended Expiration Date outstanding Shares.
(b) As soon as practicable on the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend date the Offer for any period required by any ruleis commenced, regulation or interpretation of Parent and Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO l4D-l with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO shall 14D-l will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"). Subject to Section 5.2, Parent and Purchaser represent that 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 the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent and Sub agree Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, 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 and misleading in any material respect or as otherwise required by Law. and each of Parent and Sub Purchaser further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO 14D-l and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel in writing with any comments, whether written comments or oral, other communications that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such commentscomments or other communications, and any written or oral responses thereto, and shall provide the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses comment on the proposed response of Parent and Purchaser to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocomments.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Ovid Technologies Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 8.1 8.01 and none of the events described set forth in any of paragraphs (a) or (b) of Annex III A hereto shall have occurred and or be continuing (unless waived by Parent or Sub)existing, Sub shall, and Parent Purchaser shall cause Sub to, 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”)) the Offer within ten (10) as promptly as reasonably practicable after the date hereof, but in no event later than five business days following after the date hereof. The obligations obligation of Sub Purchaser to accept for payment and to pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Tender -------------- Condition") that at least the number of Shares that combined with the Shares --------- already owned by Parent, Purchaser or any of their affiliates shall constitute at least 90% of the then outstanding Shares on the date that Shares may be accepted for payment by Purchaser shall have been validly tendered 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)) and also shall be subject only to the satisfaction of the other conditions set forth in Annex III A hereto. 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 Purchaser expressly reserves the right to waive any of such conditionscondition, to increase the Offer Price price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that Sub shall notthat, and Parent shall cause Sub not towithout the prior written -------- ------- consent of the Company, decrease no change may be made (i) which decreases the Offer Price or change price per Share payable in the Offer, (ii) which changes the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought to be paid in the Offer, waive (iii) which, except as set forth in the next succeeding sentence, extends the period that the Offer is outstanding, (iv) which reduces the maximum number of Shares to be purchased in the Offer or change (v) which imposes conditions to the Minimum Condition (as defined Offer in Annex III hereto), modify or amend any of the conditions addition to those set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse A hereto. Notwithstanding anything to the holders of the Company 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, 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 maycontrary contained herein, without the consent of the Company, (i) Parent and Purchaser may extend the Offer beyond the initial expiration date iffor the Offer for one or more periods not to exceed thirty (30) days in the aggregate. The Per Share Amount shall, at any scheduled subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (or extended) including, without limitation, the Minimum Tender Condition), Purchaser shall pay, as promptly as practicable after expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall for all Shares validly tendered into and not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionwithdrawn from, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Sub Purchaser shall file with the Securities and Exchange Commission (the "SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ") a Tender Offer Statement on Schedule TO 14D-1 (together with --- all amendments and supplements thereto, the "Schedule 14D-1") with respect to -------------- the Offer and the other Transactions (together with all amendmentsas hereinafter defined), supplements which shall have been provided to the Company and exhibits thereto, to which the “Schedule TO”)Company shall not have reasonably objected. The Schedule TO 14D-1 shall include, as exhibitscontain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"Offer Documents”"). Subject to Section 5.2Each of Parent, Purchaser and the Company hereby consents agree to the inclusion --------------- correct promptly any information provided by it for use in the Offer Documents of the recommendation which shall have become false or misleading, 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 provisions of the Exchange Act. Parent and Sub Purchaser further agree to take all commercially reasonable steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and, subject and the other Offer Documents as so corrected to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Agreement and Plan of Merger (Lpiv Acquisition Corp), Agreement and Plan of Merger (Durakon Industries Inc)
The Offer. (a) Provided that this Agreement (i) none of the events or circumstances set forth in paragraphs (b)(i) through (b)(vi) of Annex A hereto shall have occurred and be existing (and shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)Purchaser) and (ii) the Company shall have complied with its obligations under Section 1.2 Company Actions, Sub shallhereof, and Parent Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) the Offer within ten to purchase all of the Shares (10other than the Currently Owned Shares) business days following at the Offer Price as promptly as reasonably practicable after the date hereof. The obligations .
(b) Subject to the terms of Sub to accept for payment the Offer and to pay for any Shares validly tendered this Agreement and not withdrawn prior to the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto, at the time of the expiration of the Offer (as it may be extended from time to time in accordance with requirements of this Section 1.1(a1.1, the “Expiration Time”)) , Purchaser shall be subject only to the conditions set forth in Annex III hereto. 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 validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer promptly after it is permitted to do so under applicable Law. The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(c) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be made subject only to the satisfaction (or waiver by means Purchaser) 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 A hereto. Parent .
(d) Purchaser expressly reserves the right to to:
(i) waive any of such conditions, to the conditions set forth in Annex A hereto;
(ii) increase the Offer Price and to price per Share payable in the Offer; and
(iii) make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease no change may be made without the Offer Price or change prior written consent of the Company which:
(1) decreases the price per Share payable in the Offer;
(2) changes the form of consideration to be paid in which any component of the Offer Price is payable, decrease Offer;
(3) reduces the maximum number of Shares sought to be purchased in the Offer, waive or change ;
(4) imposes conditions to the Minimum Condition (as defined Offer in addition to the conditions set forth in Annex III A hereto), modify ; or
(5) modifies or amend amends any of the conditions set forth in Annex III A hereto or otherwise modify or amend any makes other term or condition changes in the terms of the Offer, in each case Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the Company Common StockExpiration Time.
(e) Notwithstanding the foregoing, impose any conditions to the Offer that are not set forth on Annex III hereto, or Purchaser shall:
(i) extend the Offer beyond a the initial scheduled Expiration Time, which shall be 20 Business Days following the date that is twenty-one (21) business days after of 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 or any extension of the Company (such consent Expiration Time, if, at the scheduled Expiration Time, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be authorized by the Company Board of Directors satisfied or a duly authorized committee thereof). Notwithstanding the foregoingwaived, but subject subject, however, to the parties’ respective rights to terminate this Agreement in accordance with pursuant to 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, 7.1. Termination; 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 or interpretation of the United States Securities and Exchange Commission (the “SEC”), ) or the staff thereof, thereof applicable to the Offer. In addition .
(f) Each extension of the Offer pursuant to paragraph (e)(i) of this Section 1.1 shall not exceed the lesser of five 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 set forth in Annex A hereto to be satisfied.
(g) If, at the Expiration Time, all of the conditions to the foregoing Offer have been satisfied but the number of Shares validly tendered and excluded from any such limitationsnot withdrawn pursuant to the Offer, Sub also may when taken together with the Currently Owned Shares, constitutes less than 90% of the Shares then outstanding, without the consent of the Company, Purchaser shall (subject to applicable Law) have the right to provide for a “subsequent offering period” in accordance with (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 Business Days after Purchaser’s acceptance for payment of the Shares then tendered and not withdrawn pursuant to the Offer, in which event Purchaser shall:
(i) give the required notice of such subsequent offering period; and
(ii) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such Expiration Time.
(bh) On The Company and Purchaser agree that no Shares held by the Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. The Company has caused each of the officers and directors of the Company listed on Section 1.1(h) of the Company Disclosure Schedule to execute and deliver to Parent and Purchaser letter agreements, substantially in the forms attached hereto as Annex B (collectively, the “Equity Award Letter Agreements”), pursuant to which such officers and directors have, among other things, agreed to (i) not exercise outstanding options to purchase Company Common Stock through Closing and (ii) relinquish all rights under existing equity award agreements with the Company.
(i) As promptly as practicable on the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act :
(“Regulation M-A”), i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). ) with respect to the Offer; and
(ii) a Schedule 13E-3.
(j) The Schedule TO shall include, as exhibits, contain or incorporate by reference an offer to purchase and forms of the Offer to Purchase and a form of related letter of transmittal and summary advertisement all other ancillary Offer documents (collectively, together with any amendments all amendments, supplements and supplements exhibits thereto, the “Offer Documents”). Subject to Section 5.2, The Company shall promptly provide Parent with all information concerning the Company hereby consents that is required to the inclusion be included 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 provisions of the Exchange ActDocuments. Parent and Sub agree to take all commercially reasonable steps necessary to Purchaser shall cause the Offer Documents to be filed with the SEC and, subject disseminated to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case the Shares as and to the extent required by applicable Lawfederal securities laws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to shall promptly correct any information provided by it 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 or as otherwise required by Law. respect, and Parent and Sub further agree to take all steps necessary to Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case case, as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Tender Offer and Merger Agreement (National Patent Development Corp), Tender Offer and Merger Agreement (Five Star Products Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none no event shall have occurred and no circumstance shall exist that would result in a failure to satisfy any of the events described conditions set forth in Annex A hereto (the "Offer Conditions," as defined in Annex A), Purchaser shall, as soon as reasonably practicable after the date hereof (and in any event within five business days from the date of paragraphs public announcement of the execution hereof), commence the Offer to purchase for cash all of the Shares, together with the associated Rights (aall references herein to Shares in the context of the transactions contemplated by this Agreement shall be deemed to include such Rights), at a price of $10.75 per Share, net to the seller in cash. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to the terms and conditions of this Agreement and to the satisfaction or waiver by Purchaser of the Offer Conditions. Purchaser shall not, without the prior written consent of the Company, (i) decrease the price per Share to be paid in the Offer, change the form of consideration payable in the Offer (other than by adding consideration) or decrease the number of Shares sought in the Offer, (ii) change or amend the Offer Conditions (other than to waive any condition, except that the Minimum Condition (as defined in Annex A) may not be waived without the consent of the Company), (iii) impose additional conditions to the Offer or (iv) amend any other term of the Offer in any manner adverse to the holders of Shares (other than insignificant changes or amendments). The Offer shall expire at 12:00 midnight, Eastern Standard Time, on the 20/th/ business day 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, that if, on the Expiration Date, the Offer Conditions have not been ------- satisfied or waived, Purchaser shall have the right, in its sole discretion, to extend the Offer for one or more periods not to exceed an aggregate of thirty business days; provided further that if all of the Offer Conditions have been ---------------- satisfied or waived and less than 90% of the outstanding Shares have been tendered in the Offer and not withdrawn, then Purchaser shall have the additional right, in its sole discretion, so long as Purchaser and Parent each waives in writing the satisfaction of each of the Offer Conditions, to extend the Offer for one or more periods not to exceed an aggregate of twenty business days; and provided further that in no event shall the Expiration Date be ---------------- extended beyond February 28, 1999 (the "Outside Date") without the consent of the Company. The Offer Conditions shall be for the benefit of Purchaser and, except with respect to the Minimum Condition, may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole discretion.
(b) As soon as reasonably practicable after the date hereof (and in any event within five business days from the date of Annex III hereto have occurred and be continuing (unless waived by Parent or Subpublic announcement of the execution hereof), Sub shallPurchaser shall file a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, collectively the "Schedule 14D-1") with respect to the Offer with the Securities and Exchange Commission (the "SEC"). The Schedule 14D-1 shall contain an offer to purchase (together with all amendments and supplements thereto collectively the "Offer to Purchase"), form of the related letter of transmittal, together with all amendments and supplements thereto (collectively the "Letter of Transmittal"), and the form of summary advertisement (which Schedule 14D-1, Offer to Purchase, Letter of Transmittal and other documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Company and its counsel shall be given an opportunity to review the Offer Documents before they are filed with the SEC. Parent shall cause Sub toand Purchaser jointly represent and warrant that the Offer Documents will, commence (within in all material respects, comply with the meaning requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the "Exchange Act"), and the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment thereunder and to pay for any Shares validly tendered 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 the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shallall other applicable laws, 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 will not withdrawn promptly following the acceptance contain any untrue statement of Shares for payment pursuant a material fact or omit 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 to waive any of such conditions, to increase the Offer Price and state a material fact necessary to make any other changes in the terms of the Offerstatements contained therein not misleading; provided, however, that Sub the -------- ------- representations and warranties in this subsection shall not, and Parent shall cause Sub not to, decrease apply to statements in or omissions from the Offer Price Documents made in reliance upon and in conformity with information furnished to Parent in writing by or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 behalf of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) . Parent and Purchaser shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable promptly provide to the Offer. In addition to Company a copy of any written comments received by them from the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO SEC with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to Purchaser 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 or as otherwise required by Law. respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the Offer Documents (other than the Schedule 14D-1), as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretofederal securities laws.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Steel of West Virginia Inc), Merger Agreement (Swva Acquisition Inc)
The Offer. (a) Provided that As promptly as practicable after the date of this Agreement shall not have been terminated in accordance with Section 8.1 (and none of the events described in any event no later than eight (8) Business Days following the date of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subthis Agreement), Merger Sub shall, 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 (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) the Offer within ten Offer.
(10b) business days following the date hereof. The obligations obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered and not validly withdrawn prior pursuant 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) there being validly tendered in the Offer and not validly withdrawn prior to any then-scheduled Expiration Time that number of Shares which, together with the Shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the total number of Shares then outstanding (determined on a 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 satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex III heretoA (together with the Minimum Condition, the “Offer Conditions”) (and shall not be subject to any other conditions). Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub of conditions set forth in Annex III hereto, Sub shall, shall (and Parent shall cause Merger Sub to, ) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not validly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer 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 and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains describes the terms and conditions of the Offer 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 and or as previously approved in writing by the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) change, modify or waive the Minimum Condition, (iv) add to the conditions set forth in Annex III hereto. Parent expressly reserves A or otherwise impose any other condition to the right to waive Offer, (v) except as otherwise provided in this 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) otherwise amend, modify or supplement any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, .
(d) The Offer shall expire at midnight (New York City time) on the date that Sub shall not, and Parent shall cause Sub not to, decrease is twenty (20) Business Days following the Offer Price or change commencement (within the form meaning of consideration in which any component Rule 14d-2 under the Exchange Act) of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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 “Initial Expiration DateTime”) except as set forth belowor, in each case without the prior written consent of event the Company 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 consent later date and time to be authorized by which the Company Board of Directors or a duly authorized committee thereofInitial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”). .
(e) Notwithstanding anything in this Agreement to the foregoingcontrary, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1under Article VIII, if applicable, Merger Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and (i) may, in its sole discretion, without the consent of the Company, (i) extend the Offer beyond the initial expiration date ifon one or more occasions for periods of up to ten (10) Business Days per extension, at if on any then-scheduled (or extended) expiration of the Offer, Expiration Time any of the conditions set forth in Annex III hereto (other than the Minimum Condition) Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived, until such time as such condition or waived for up to two periods of not more than ten (10) business days per extensionconditions are satisfied or waived, (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) shall extend the Offer for any period required by applicable Law, any rule, regulation interpretation or interpretation position of the United States Securities and Exchange Commission SEC, the staff thereof or the NASDAQ Stock Market (“SECNASDAQ”), or the staff thereof, ) applicable to the Offer. In addition , and, for periods of up to ten (10) Business Days per extension, until any waiting period (and any extension thereof) applicable to the foregoing consummation of the Offer under the HSR Act and excluded from 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 limitationstime as such condition or conditions are satisfied or waived; provided, however, that in no event shall Merger Sub also 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 this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of an amount pursuant to Section 3.2(b)(iii)) all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may provide be extended and re-extended in accordance with 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”. 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 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.1 shall affect any termination rights in Article VIII, as to the Agreement, or in Annex A, as to the Offer.
(bg) On 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, Parent and Merger Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto, the “Offer Documents”). Subject The Company shall promptly (and in any event no later than five (5) Business Days following the date of this Agreement) furnish to Section 5.2, Parent and Merger Sub all information concerning the Company hereby consents required by the Exchange Act to the inclusion be set forth 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 provisions of the Exchange ActDocuments. Parent and Merger 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)immediately following such filing, disseminated to holders the stockholders of Sharesthe Company, together with, to the extent requested by the Company, the Schedule 14D-9, in each case as and to the extent required by applicable Lawthe Exchange Act. Parent and Merger Sub, 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 such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. 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 and, immediately following such filing, disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable Lawthe Exchange Act. The 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 be given promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand 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 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 Schedule TO and any amendment thereto before it is filed with the SECsuch Offer Documents or response, and Parent and Merger Sub shall give due reasonable consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto.
(ci) Parent shall provide or cause to be provided to Sub promptly following Merger Sub, on a timely basis, 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 any shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer and that Merger Sub is becomes obligated to accept for payment payment, and pay for, pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1 and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events described conditions set forth in any Annex A hereto, as promptly as practicable after the date hereof (but in no event later than five business days from the public announcement of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subthe execution hereof), Sub the Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer (the "Offer") to purchase for cash any and all of the issued and outstanding shares of (i) Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock") at a price of $35.00 per Common Share, net to the seller in cash (such price, or such higher price per Common Share as may be paid in the Offer, being referred to herein as the "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 rules 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 regulations promulgated thereunderHarris 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 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; 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 “Exchange Act”)) Purchaser may extend the Offer within ten (10) for up to 20 business days following from the date hereofthat all conditions to the Offer shall first have been satisfied or waived. The obligations of Sub the Purchaser to accept for payment and to pay for any and all Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (as it may be extended in accordance with requirements of this Section 1.1(a)the "Minimum Condition") shall be subject only to and the other conditions set forth in Annex III A hereto. 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 containing the terms set forth in this Agreement Agreement, the Minimum Condition and the other conditions set forth in Annex III A hereto. Parent expressly reserves The Purchaser shall not amend or waive the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not toMinimum Condition, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in sought, or impose any additional conditions to the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any term of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case Offer in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, Shares or extend the Offer beyond a expiration date that is twenty-one (21) business days after commencement of the Offer or the last extension (except for such extensions as permitted in accordance with this Section 1.1are contemplated below), 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 of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, but the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the parties’ respective rights provisions of Section 7.01(b)(i) hereof if, and to terminate this Agreement in accordance with Section 8.1the extent that, Sub shall, upon at the written request initial expiration date of the Company at least one business day before Offer, or any extension thereof, all conditions to the then-scheduled expiration dateOffer have not been satisfied or waived. In addition, the Offer Price may be increased and maythe 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, the Class A Offer Price will be increased by an equal amount, and in the event of any increase in the Class A Offer Price, the Common Offer Price will be increased by an equal amount.
(ib) extend As soon as practicable on the date the Offer beyond is commenced, Parent and the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) Purchaser shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b") On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”14D-1"). The Schedule TO shall 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 when filed will comply as to form in all material respects with all applicable the provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to omissions or information supplied in writing for inclusion in the Offer Documents, in each case by the Company. Each of Parent and Sub agree the Purchaser further agrees to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject and to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, 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 or as otherwise required by Law. and each of Parent and Sub the Purchaser further agree 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 Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the initial Schedule TO and any amendment thereto 14D-1 before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel in writing with any comments, whether written comments or oral, other communications that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or other communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Berg Acquisition Co), Merger Agreement (Berg Acquisition Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 8.01, and none of subject to the events described Company having complied with its obligations set forth in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or SubSection 1.02(b), Merger Sub shall, and Parent Acquiror shall cause Merger Sub to, on or before the date that is ten (10) Business Days after the date of the execution of this Agreement, 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”)) the Offer within ten Offer.
(10b) business days following the date hereof. The obligations of Merger Sub to, and of Acquiror to cause Merger Sub to, accept for payment and to pay for any Shares validly tendered and not validly withdrawn prior pursuant to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be are subject only to the satisfaction or waiver (if permitted by Section 1.01(c) below) of the conditions set forth in Annex III heretoI (the “Offer Conditions”) and are not subject to any other conditions (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement). Subject On the terms and subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretoOffer Conditions, Merger Sub shall, and Parent Acquiror shall cause Merger Sub to, (x) consummate the Offer in accordance with its terms and (y) accept for payment and pay for all Shares validly tendered and not validly 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 PurchaseTendered Shares”) that contains as soon as practicable after the terms set forth Expiration Date (as defined below) and in compliance with applicable Law (as defined below). The acceptance for payment of Shares pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the conditions set forth date and time at which the Offer Closing occurs is referred to in Annex III heretothis Agreement as the “Acceptance Time.” Acquiror shall provide, or cause to be provided, to Merger Sub on the date of the Offer Closing all funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and this Agreement.
(c) The Offer Conditions (other than the Minimum Condition) are for the sole benefit of Acquiror and Merger Sub, and, to the extent permitted by applicable Law, Acquiror and Merger Sub may waive, to the extent permitted by applicable Law, in whole or in part, any Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Minimum Condition, which may be waived by Acquiror and Merger Sub only with the prior written consent of the Company. Parent Acquiror and Merger Sub expressly reserves reserve the right to waive waive, to the extent permitted by applicable Law, any of such conditionsthe Offer Conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; providedprovided that, howeverunless otherwise provided in this Agreement or previously approved by the Company in writing, that Acquiror and Merger Sub shall not, and Parent shall cause Sub not to: (i) subject to Section 3.07, decrease the Offer Price or change the form of consideration payable in which any component of the Offer Price is payableOffer, (ii) decrease the number of Shares sought to be purchased in the Offer, waive or change (iii) impose conditions on the Minimum Condition (as defined Offer in Annex III hereto), modify addition to the Offer Conditions or amend any of the conditions set forth Offer Condition in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any a manner that is adverse to the holders of Shares, (iv) waive or amend the Company Common StockMinimum Condition, impose (v) amend 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 other term of the Offer in a manner that is adverse to the holders of Shares, (vi) extend or otherwise change the last extension Expiration Date (as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”defined below) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized required or permitted by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”1.01(e), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may (vii) provide a “subsequent offering period” in accordance with within the meaning of Rule 14d-11 promulgated under the Exchange Act.
(bd) On the date of commencement of the OfferOffer is commenced, Parent Merger Sub shall, and Acquiror shall cause Merger Sub shall to, file with the U.S. Securities and Exchange Commission (the “SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ) a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The such Schedule TO shall include, as exhibits, and the documents included therein pursuant to which the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelywill be made, together with any exhibits, supplements or amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject disseminated to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case Shares as and to the extent required by applicable Law. Parent Subject to Section 6.02, the Company hereby consents to the inclusion of the recommendation of the Company Board that the Company’s stockholders accept the Offer and Sub, on tender all of their Shares pursuant to the one handOffer (the “Company Board Recommendation”) in the Offer Documents. Merger Sub shall, and Acquiror shall cause Merger Sub to, cause the CompanyOffer Documents and the filing and dissemination thereof to comply in all material respects with the requirements of applicable Law. The Company shall promptly furnish to Acquiror and Merger Sub all information concerning the Company and the holders of Shares that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.01(d), on including communication of the other hand, agree Offer to the record and beneficial holders of Shares. Each of the parties agrees 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 or as otherwise required by Law. Parent respect, and Acquiror and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review Acquiror and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Merger Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by provide the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company counsel in writing with any written comments (and shall orally describe any oral comments) that Acquiror, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of Shares, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such commentscomments of the SEC with respect to the Offer Documents, either in written or oral form. The Acquiror and Merger Sub shall provide the Company and its legal counsel shall be given with a reasonable opportunity to review any responses to and comment on such comments Offer Documents or communicationsresponse, and Parent Acquiror and Merger Sub shall give due reasonable consideration to all any comments provided by the Company. Acquiror and Merger Sub shall use reasonable views and comments of the Company and its legal counsel with respect theretobest efforts to respond promptly to any such SEC comments.
(ce) Parent Subject to the terms and conditions set forth in the Offer Documents, the Offer shall provide remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.01(e) or cause as may be required by applicable Law, the time and date to be provided which the Offer has been so extended (the Initial Expiration Date or such later time and date to Sub promptly following which the expiration Offer has been extended in accordance with this Section 1.01(e) or applicable Law, the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any 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 Conditions shall not have been validly tendered satisfied or waived in accordance with this Agreement, Merger Sub shall, and Acquiror shall cause Merger Sub to, extend the Offer for successive periods of not withdrawn more than twenty (20) Business Days per extension (as defined below) (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived in accordance with this Agreement), and (ii) Merger Sub shall, and Acquiror shall cause Merger Sub to, extend the Offer for any period required by any applicable Law, rule, regulation, interpretation or position of the SEC or its staff or rules of the Nasdaq Stock Market applicable to the Offer; provided that, in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined below). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Acquiror or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Acquiror shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer and that Sub is obligated terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to accept the acceptance for payment pursuant of Shares tendered in the Offer, Merger Sub shall, and Acquiror shall cause Merger Sub to, promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the Offer and permitted to accept for payment under applicable Lawregistered holders thereof.
Appears in 2 contracts
Sources: Merger Agreement (News Corp), Merger Agreement (Move Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 8.1, (ii) the Company is prepared (in accordance with Section 2.2(b)) to file the Schedule 14D-9 on the same date as the Purchaser commences the Offer and (iii) none of the events described set forth in any of paragraphs clauses (ai) or through (bvii) of Annex III hereto I shall have occurred or be continuing, as promptly as practicable (and be continuing in any event within seven (unless waived by Parent or Sub)7) Business Days) after the date hereof, Sub shall, the Purchaser shall (and Parent shall cause Sub the Purchaser to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer to purchase all the outstanding Shares at the Offer Price, subject to: (i) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares condition that there being validly tendered in the Offer and not properly withdrawn prior to the expiration Expiration Date that number of Shares which, together with the number of Shares (if any) then beneficially owned by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Offer Shares then outstanding (determined on a fully diluted basis as it may be extended of immediately following the Acceptance Time (excluding from the number of tendered Shares, but not from the outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in accordance with requirements settlement or satisfaction of such guarantee)) and entitled to vote in the election of directors or (if a greater majority) on the adoption of this Section 1.1(aAgreement (collectively, the “Minimum Condition”); and (ii) shall be subject only to the satisfaction, or written waiver (where permitted by applicable Law) by Parent or the Purchaser, of the other conditions and requirements set forth in Annex III hereto. I.
(b) Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or written waiver (where permitted by applicable Law) by Parent or Sub the Purchaser, of the other conditions and requirements set forth in Annex III heretoI, Sub shall, the Purchaser shall (and Parent shall cause Sub and enable the Purchaser to, consummate the Offer in accordance with its terms and ) accept for payment and pay for all Shares validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer promptly after the Purchaser is legally permitted to do so under applicable Law in accordance with the Exchange Act. 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, subject to any withholding of Taxes required by applicable Law in accordance with Section 3.2(f).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains 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 this Agreement Annex I. Parent and the Purchaser expressly reserve the right to waive (where permitted by applicable Law), in their sole discretion, in whole or in part, any of the conditions set forth in on Annex III hereto. Parent expressly reserves the right to waive any of such conditionsI, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive or change the Minimum Condition Condition, (as defined in Annex III hereto), modify or v) amend any of the other conditions and requirements to the Offer set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, I in each case in any a manner adverse to the holders of Shares or (vi) extend the Company Common StockExpiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, impose any conditions to the Offer that are not set forth shall expire at 5:00 p.m. (New York City time) on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after Business Days following the commencement of the Offer or (the last extension (as permitted “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Section 1.1)Agreement, if anythe date on which the Offer has been so extended (the Initial Expiration Date, of or such later date to which the OfferInitial Expiration Date has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) except as 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 belowin Annex I) have not been satisfied or, where permitted by applicable Law, waived in each case without writing by Parent or the prior written consent of Purchaser, the Company Purchaser shall (such consent to be authorized by and Parent shall cause the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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, (iPurchaser to) extend the Offer beyond the initial expiration date ifon one or more occasions, at any scheduled (or extended) expiration for successive periods of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods twenty (20) Business Days each, in order to permit the satisfaction of not more than ten such conditions. In addition, the Purchaser shall (10) business days per extension, (ii) from time to time, extend and Parent shall cause 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 (iiiPurchaser to) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the United States U.S. Securities and Exchange Commission (the “SEC”) or its staff. Notwithstanding the foregoing, the Purchaser shall not be required to extend the Offer for any reason beyond September 17, 2011 (the “Outside Date”).
(f) Notwithstanding the foregoing, if necessary to obtain sufficient Shares to reach the Short Form Threshold, the Purchaser shall (and Parent shall cause the Purchaser to), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct of not more than twenty (20) Business Days in the aggregate; provided, however, that if the Purchaser exercises the Top Up Option pursuant to Section 2.4, it shall not be required to provide for a “subsequent offering period.” 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 pay for, all Shares that are validly tendered pursuant to the Offer 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 2.1(f).
(bg) On 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 VIII. If this Agreement is terminated pursuant to Article VIII, 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 terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) 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 promptly as practicable on the date of the commencement of the Offer, Parent and Sub the Purchaser shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (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 letter of transmittal and transmittal, a form of summary advertisement and other ancillary Offer documents and instruments, if any, in respect of the Offer (collectively, together with any amendments and supplements theretothereto and the Schedule TO, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Parent 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 provisions of the Exchange Act. Parent and Sub Purchaser 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 Lawthe Exchange Act. Parent and Subthe 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 or as otherwise required by applicable Law. , and Parent and Sub further the Purchaser agree to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub the Purchaser shall give due consideration to all reasonable the additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company with (i) a copy of any comments, whether written comments or oral, telephonic notice of any oral comments that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, be received from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, thereof and any written or oral responses thereto, and the Company 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. The Company thereto and its legal counsel shall be given (ii) a reasonable opportunity to review any responses provide comments on that response (to such comments or communications, and Parent and Sub shall give which due consideration shall be given) and to all reasonable views and comments of participate in such response, including by participating in any discussions with the Company and its legal counsel with respect theretoSEC.
(ci) Parent shall provide or cause to be provided to Sub promptly following the expiration of Purchaser on a timely basis 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 any Shares that have been validly tendered and not withdrawn the Purchaser becomes obligated to purchase pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable LawOffer.
Appears in 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Celera CORP)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article X and provided that none of the events described set forth in any of paragraphs (a) or (b) of Annex III I hereto shall have occurred and be continuing (unless and shall not have been waived by Parent or SubParent), Sub shallunless otherwise agreed by Parent and the Company, and as promptly as reasonably practicable after the public announcement of the execution of this Agreement, Parent shall cause Merger Sub to, to commence (within the meaning of as defined in Rule 14d-2 promulgated under the Securities Exchange Act Act) the Offer to purchase each issued and outstanding share of 1934Company Common Stock in exchange for, as amended at the election of the holder thereof, either: (i) a net amount of $26.50 in cash (the "Cash Consideration"), or (ii) 0.3256 of a share of Parent Common Stock (the "Stock Consideration" and, together with the rules and regulations promulgated thereunderCash Consideration, the “Exchange Act”"Offer Consideration"); provided, however, that if the number of Tendered Cash Election Shares exceeds 30% of the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the Acceptance Date (the "Maximum Cash Election Number"), then each Tendered Stock Election Share shall be exchanged for the Stock Consideration and each Tendered Cash Election Share shall be exchanged for (1) an amount in cash, without interest, equal to the product of (x) the Cash Consideration and (y) a fraction (the "Cash Fraction"), the numerator of which shall be the Maximum Cash Election Number and the denominator of which shall be the total number of Tendered Cash Election Shares, and (2) a number of shares of Parent Common Stock equal to the product of (x) the Stock Consideration and (y) a fraction equal to one minus the Cash Fraction. In the event the number of Tendered Cash Election Shares is equal to or less than the Maximum Cash Election Number, all Tendered Cash Election Shares shall be exchanged for the Cash Consideration and all Tendered Stock Election Shares shall be exchanged for the Stock Consideration. Subject to the foregoing provisions of this Section 2.01(a), stockholders of the Company shall be permitted to elect to receive the Cash Consideration for a portion of their shares of Company Common Stock and the Stock Consideration for another portion of their shares of Company Common Stock. Stockholders who validly tender shares of Company Common Stock but fail to make any election shall be deemed to have elected to receive the Stock Consideration for all shares of Company Common Stock validly tendered.
(b) The Offer within ten shall be subject only to (101) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the expiration of the Offer Offer, and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock owned by Parent and Merger Sub, represents at least 50.1% of the shares of Company Common Stock outstanding on a fully diluted basis (as it may be extended in accordance with requirements of this Section 1.1(a)the "Minimum Condition") shall be subject only to and (2) the other conditions set forth in Annex III I hereto. Subject to Upon termination of the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretoMerger Agreement, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms shall immediately expire and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance terminate without any shares of Shares for payment pursuant to the OfferCompany Common Stock being purchased thereunder. 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 Merger Sub expressly reserves the right to waive any of such conditions, the conditions to increase the Offer Price and to make any other changes change in the terms of or conditions to the Offer; provided, however, that, without the prior written consent of the Company, no change may be made by Merger Sub that Sub shall not, and Parent shall cause Sub not to, decrease (i) decreases the Offer Price or change consideration payable in the Offer; (ii) changes the form of consideration payable in which any component of the Offer Price is payable, decrease to a form other than cash or shares of Parent Common Stock; (iii) decreases the aggregate amount of Cash Consideration available in the Offer or changes the relative amount of Cash Consideration available in the Offer; (iv) reduces the number of Shares shares of Company Common Stock sought in the Offer; (v) imposes conditions to the Offer in addition to those set forth in Annex I; (vi) modifies or waives the Minimum Condition; (vii) except as provided below, waive changes the date on which the Offer is scheduled to expire; or (viii) makes any other change that is adverse to the holders of Company Common Stock or to holders that have elected a particular form of Offer Consideration. Notwithstanding the foregoing, unless the Company otherwise consents prior thereto, Merger Sub shall (or, in the case of clause (iii) below, shall at its option have the right to) extend the Offer for one or more periods (not in excess of ten business days each) (i) beyond the scheduled expiration date, which shall initially be 25 business days following the commencement of the Offer, up to the Termination Date, if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or, to the extent permitted, waived, until such conditions are satisfied or, to the extent permitted, waived, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law, or (iii) for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to the Offer have been satisfied or waived, but the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer equals more than 80%, but less than 90% of the outstanding shares of Company Common Stock on a fully diluted basis; provided, however, that (x) Parent and Merger Sub shall not be obligated to extend the Offer pursuant to clause (i) of this sentence (but may elect to do so in accordance with this Section 2.01(b), provided that no such extension or series of extensions of more than 10 business days in the aggregate may be made without the prior written consent of the Company) if the Minimum Condition (is not satisfied at the time such extension would otherwise be required, so long as defined in Annex III hereto), modify or amend any of the conditions set forth in clauses (ii), (iii) and (iv) of Annex III hereto I have been satisfied, and Parent has publicly announced such fact and its intention not to extend the Offer at least two business days prior to the date such extension would, but for this proviso, otherwise have been required and (y) in the event Parent or otherwise modify or amend any other term or condition Merger Sub elects to extend the expiration date pursuant to clause (iii), Parent and Merger Sub shall be deemed to have irrevocably waived all of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on in paragraphs (a) through (g) of Annex III heretoI. Except as provided in clause (iii) of the previous sentence, or Parent and Merger Sub shall not be permitted to 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 at the time that all conditions to be authorized by the Offer have been satisfied or, to the extent permitted, waived. Parent and Merger Sub shall deliver written notice to the Company Board (the "Acceptance Notice") of Directors or a duly authorized committee thereof)its intention to accept for payment shares of Company Common Stock pursuant to the Offer one business day in advance of the proposed Acceptance Date. Notwithstanding Subject to the foregoingforegoing and clause (c) below, but and upon the terms and subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request conditions of the Company at least one business day before Offer, Parent shall cause Merger Sub to accept for payment or exchange, as promptly as practicable after the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Notwithstanding anything to the contrary contained in this Article II, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of shares of Company Common Stock pursuant to the Offer, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of any such fractional shares, the Offer Exchange Agent shall, as soon as practicable after the Acceptance Date, aggregate all such fractional shares and such fractional shares shall be sold by the Offer Exchange Agent as agent for the holders of such fractional shares, at the then prevailing price on the NYSE, all in the manner provided hereinafter. Until the net proceeds of such sale or sales have been distributed to the holders of fractional shares, the Offer Exchange Agent shall retain such proceeds in trust for the benefit of such holders as part of the Offer Exchange Fund. The sale of the fractional shares by the Offer Exchange Agent shall be executed on the NYSE or through one or more member firms of the NYSE and will be executed in round lots to the extent practicable. The Offer Exchange Agent will determine the portion, if any, of the net proceeds of such sale to which each holder of fractional shares is entitled by multiplying the amount of the aggregate net proceeds of the sale of the fractional shares by a fraction the numerator of which is the amount of fractional shares to which such holder is entitled and the denominator of which is the aggregate amount of fractional shares to which all holders of fractional shares are entitled. The Company shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Offer Exchange Agent, incurred in connection with such sale of shares of Parent Common Stock.
(c) Notwithstanding anything else to the contrary contained in this Agreement, and notwithstanding the satisfaction of the conditions set forth in on Annex III hereto (other than the Minimum Condition) I, Parent shall not (unless the Company notifies Parent otherwise) be satisfied permitted to accept for payment or waived for up exchange any shares of Company Common Stock pursuant to two periods of not more than ten the Offer if, at such time, (10i) business days per extensionParent shall have breached or failed to perform in any material respect its obligations, covenants or agreements under the Agreement, (ii) from the representations and warranties of Parent or Merger Sub contained in the Agreement that are qualified by reference to a Parent Material Adverse Effect shall not have been true and correct when made or as of the Acceptance Date as if made at or at and as of such time to time(other than such representations and warranties which by their terms address matters only as of another specified date, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfiedwhich shall be true and correct only as of such date), 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 representations and warranties of Parent or interpretation Merger Sub contained in the Agreement that are not so qualified shall not have been true and correct when made or as of the United States Securities Acceptance Date as if made at or at and Exchange Commission as of such time (“SEC”other than representations and warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except, in the case of this clause (iii) only, for such inaccuracies as have not resulted, or are not reasonably likely to result, in a Parent Material Adverse Effect, or (iv) Parent shall have failed to deliver a certificate signed by an executive officer of Parent, dated the staff thereofAcceptance Date, applicable to the Offer. In addition effect that, to such officer's knowledge, the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” conditions set forth in accordance with Rule 14d-11 under the Exchange Actclauses (i) through (iii) of this subsection (c) have been satisfied.
(bd) On As soon as reasonably practicable on the date of commencement of the Offer, Parent shall, and Parent shall cause Merger Sub shall to, (i) file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO relating to the Offer, which shall include an offer to purchase and letter of transmittal/election form and such other ancillary documents as shall be required by applicable Law (together with respect any amendments or supplements thereto, the "Schedule TO"; and, together with the Offer Registration Statement (as defined below) and such other documents pursuant to which the Offer will be made, the "Offer Documents"), (ii) file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (together with all amendments, supplements the "Offer Registration Statement") and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause iii) disseminate the Offer Documents to be filed holders of Company Common Stock. Each of the Company and Parent shall use their reasonable efforts to have the Offer Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof 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 keep the extent required by applicable LawOffer Registration Statement effective as long as necessary to complete the Offer. Parent and SubEach of Parent, on the one hand, Merger Sub and the Company, on the other hand, Company agree 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 or as otherwise required by Lawrespect. Parent shall, and Parent shall cause Merger Sub further agree to to, take all steps necessary to cause the Schedule TO and the Offer Documents Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be, at such time as reasonably agreed by Parent and the Company, disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable Lawfederal securities Laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and any amendment thereto before it is Offer Documents prior to their being filed with the SECSEC or disseminated to the holders of shares of Company Common Stock. Parent shall, and Parent and shall cause Merger Sub shall give due consideration to all reasonable additionsto, deletions or modifications thereto suggested by provide the Company and its legal counsel. In addition, counsel with any comments Parent and Sub agree to provide the Company with any comments, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after the receipt of such comments, comments and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of provide the Company and its legal counsel with respect theretoan opportunity to participate in the response of Parent or Merger Sub to such comments.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Unilab Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 9.01 hereof and that none of the events described set forth in any of paragraphs clauses (a) or through (bh) of Annex III ANNEX A hereto shall have occurred and or be continuing (unless waived by Parent or Sub)continuing, Sub shall, and Parent Purchaser shall cause Sub to, 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”"EXCHANGE ACT")) the Offer within ten as promptly as reasonably practicable after the date hereof, but in no event later than seven (107) business days following after the date hereof. initial public announcement of the execution of this Agreement; PROVIDED; HOWEVER, in the event the Company shall have failed to provide mailing labels to Purchaser pursuant to Section 2.02 hereof within five (5) business days after the initial public announcement of the execution of this Agreement, Purchaser shall commence the Offer within two (2) business days of receipt of such labels.
(b) The obligations obligation of Sub Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to (x) the satisfaction of the condition (the "MINIMUM CONDITION") that at least the number of Shares that, when added to Shares, if any, already owned by Parent, shall constitute (A) a majority of the then outstanding Common Shares (including, without limitation, all Common Shares issuable upon the conversion of the Series A Shares or upon the exercise or conversion of any options, warrants, rights or other convertible securities), or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, and (B) a majority of the then outstanding Series A Shares, or such higher percentage of such class of securities as may be required to pay for any Shares approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, shall have been validly tendered and not withdrawn prior to the expiration of the Offer Offer, and (as it y) the satisfaction of each of the other conditions set forth in ANNEX A hereto.
(c) Purchaser expressly reserves the right to waive any such condition, to increase the Per Share Common Amount and the Per Share Preferred Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that no change may be extended made which (i) decreases the Per Share Common Amount or the Per Share Preferred Amount, (ii) increases the Per Share Preferred Amount such that the Per Share Preferred Amount is greater than the amount obtained by multiplying the Per Share Common Amount by two (2) or the Per Share Common Amount such that the Per Share Common Amount is no greater than the amount obtained by dividing the Per Share Preferred Amount by two (2), (iii) reduces the maximum number of Shares to be purchased in accordance with requirements the Offer, (iv) changes the form of consideration to be paid in the Offer, (v) extends the Offer except as provided in this Section 1.1(a)2.01, (vi) shall be subject only imposes conditions to the Offer in addition to those set forth in ANNEX A hereto or amends the conditions set forth in Annex III hereto. Subject ANNEX A to broaden the scope of such conditions, (vii) reduces or waives the Minimum Condition without the prior approval of the Company, or (viii) amends any other terms of the Offer in a manner adverse to the prior satisfaction holders of the Shares. Notwithstanding the foregoing, in addition to its rights under paragraph (e) below, Purchaser may, without the consent of the Company, (A) extend the Offer for a period of not more than thirty (30) business days beyond the scheduled expiration date, which shall be twenty (20) business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waiver waived, or (B) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date of the Offer, the sole condition remaining unsatisfied is the failure of the waiting period, if any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), to have expired or been terminated, then Purchaser may extend the Offer from time to time until the earlier to occur of (i) December 31, 2002 and (ii) the fifth (5th) business day following the public announcement of the expiration or termination of the applicable waiting period under the HSR Act. Parent and Purchaser agree that, if any one or Sub more of the conditions to the Offer set forth on ANNEX A are not satisfied and none of the events set forth in paragraphs (b), (f) or (g) of ANNEX A that would permit Purchaser not to accept Shares tendered for payment has occurred, then, PROVIDED that such other conditions set forth in Annex III heretoANNEX A are reasonably capable of being satisfied within thirty (30) days in Parent and Purchaser's sole judgment, Sub Purchaser shall, and Parent shall cause Sub toat the request of the Company, consummate extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied within such thirty (30) day period in accordance with its Parent and Purchaser's sole judgment; PROVIDED, HOWEVER, in no event shall Purchaser be required to extend the Offer beyond December 31, 2002.
(d) The Per Share Common Amount and the Per Share Preferred Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and accept for payment and subject to the conditions of the Offer. Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall If the payment equal to the Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, in cash is to be made by means of an offer to purchase (a person other than the “Offer to Purchase”) that contains person in whose name the terms set forth in this Agreement and surrendered certificate formerly evidencing Shares is registered on the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 stock transfer books of the Company, (i) extend it shall be a condition of payment that the Offer beyond certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the initial expiration date if, at any scheduled (or extended) expiration person requesting such payment shall have paid all transfer and other taxes required by reason of the Offer, any payment of the conditions set forth in Annex III hereto (Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, to a person other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation registered holder of the United States Securities and Exchange Commission (“SEC”)certificate surrendered, or the staff thereof, applicable shall have established to the Offer. In addition to the foregoing and excluded from any reasonable satisfaction of Purchaser that such limitationstaxes either have been paid or are not applicable.
(e) Purchaser may, Sub also may in its sole discretion, provide a “"subsequent offering period” in accordance with " as contemplated by Rule 14d-11 under the Exchange ActAct following its acceptance for payment of Shares in the Offer.
(bf) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "SCHEDULE TO") with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”)Offer. The Schedule TO shall include, as exhibitscontain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"). Subject to Section 5.2Parent, Purchaser and the Company hereby consents agree to the inclusion correct promptly any information provided by any of them for use in the Offer Documents of the recommendation that shall have become false or misleading, 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 provisions of the Exchange Act. Parent and Sub Purchaser further agree to take all commercially reasonable steps necessary to cause the Offer Documents Schedule TO, as so corrected, to be filed with the SEC andSEC, subject and the other Offer Documents, as so corrected, to the Company’s compliance with Section 1.2(c), be disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. Parent and Sub, on Purchaser shall give the one hand, Company 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given its counsel a reasonable opportunity to review and comment on upon the Schedule TO and any amendment thereto before it is filed Offer Documents prior to the filing thereof with the SEC, and SEC or dissemination to holders of Shares. Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by provide the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company counsel with any comments, whether written comments Parent or oral, that Parent, Sub Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon Documents after receipt of such comments, comments and any written or oral responses thereto, and shall provide the Company 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. The Company and its legal counsel shall be given with a reasonable opportunity to review any responses participate in the response of Parent or Purchaser to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocomments.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
The Offer. (a) Provided Provided, that nothing shall have occurred that gives rise to a right of Parent to terminate the Offer or this Agreement shall not have been terminated in accordance with Section 8.1 and Agreement; provided, further, that none of the events described conditions set forth in any of paragraphs Sections (aiii)(c) or through (biii)(e) of Annex III A hereto shall have occurred and be continuing (unless waived as of the date that Purchaser would otherwise commence the Offer; and provided, further, that the Company has fulfilled its obligation to provide information to Parent and Purchaser on a timely basis as contemplated by Parent or SubSection 2.1(f), Sub shall, and Parent Purchaser shall cause Sub to, 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”)) the Offer within ten (10) business days following as promptly as reasonably practicable after the date hereof. Parent or Purchaser shall provide the Company with prior written notice if Purchaser fails to commence the Offer within 10 business days of the date of this Agreement together with a brief explanation of the reasons therefore.
(b) The obligations obligation of Sub Purchaser to accept for payment payment, purchase and to pay for any Company Shares tendered pursuant to the Offer shall be subject to (x) the condition (the “Minimum Condition”) that at least that number of Company Shares equal to (i) fifty percent (50%) of the then outstanding Company Shares on a fully diluted basis (including all Company Shares potentially issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than the Rights) including the Company RSUs, in each case, which are convertible or exercisable prior to the Outside Date but excluding the Subject Shares) plus (ii) the Subject Shares, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (as it may be extended in accordance with requirements of this Section 1.1(a)y) shall be subject only to the other conditions set forth in Annex III A hereto. 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 Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any of such conditionscondition (other than the Minimum Condition which may not be amended or waived), to increase the Offer Price price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, howeverthat without the prior written consent of the Company no change may be made that decreases the price per Company Share payable in the Offer, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change changes the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, waive or change reduces the Minimum Condition (as defined maximum number of Company Shares sought to be purchased in Annex III hereto)the Offer, modify or amend any of adds to the conditions to the Offer set forth in Annex III hereto A hereto, extends the Offer other than as set forth in this Section 2.1, or otherwise modify modifies or amend amends any other term or condition of to the Offer, in each case Offer in any manner adverse to the holders of the Company Common Stock, impose any conditions Shares.
(c) Subject to the Offer that are not set forth on Annex III heretoterms and conditions thereof, or extend the Offer beyond a 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 is twenty-one (21) business days after commencement of the Offer or the last extension is commenced (as permitted determined in accordance with this Section 1.1), if any, of Rule 14d-1(g)(3) under the Offer, whichever is later 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(c) except (in which event the term “Expiration Date” shall mean the latest time and date as set forth belowthe Offer, 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 thereofas so extended, may expire). Notwithstanding the foregoing, 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 Purchaser may, without the consent of the Company, (i) extend the Offer for one or more periods beyond the initial scheduled expiration date if, at any the scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) to Purchaser’s obligation to accept Company Shares for payment shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfiedwaived, for up such period of time as Purchaser reasonably determines to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps be necessary to cause the Offer Documents permit such conditions 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 Law. Parent and Sub, 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 satisfied or misleading in any material respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counselwaived. In addition, Parent and Sub agree to provide the Company with any comments, whether written or oral, that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of Purchaser shall extend the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (but in accordance with Section 8.1 and none no event later than five business days following the public announcement of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Subexecution hereof), Sub shall, and Parent Purchaser shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together the "Exchange Act")), an offer to purchase all of the Company's outstanding shares of common stock, par value $0.10 per share (the "Shares"), at a price of $2.00 per Share, net to the seller in cash (as such offer may be amended in accordance with the rules and regulations promulgated thereunderterms of this Agreement, the “Exchange Act”"Offer"), subject to the conditions set forth in Annex A hereto. Purchaser will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of Shares sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Parent in its sole discretion may waive any 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) make any other change in the terms or conditions of the Offer that is adverse to the holders of Shares. Purchaser will, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer; provided that, Purchaser may extend the Offer up to the tenth business day after the later of (i) the initial expiration date of the Offer within ten and (10ii) business days following the date hereofon 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, regardless of whether the Company has, directly or indirectly, the power to vote or control the disposition of such Shares. The obligations of Sub Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered and not withdrawn on or prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) and not withdrawn shall be subject only to the conditions set forth in Annex III A hereto. 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 to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (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, in each case in any manner adverse to the holders of the Company 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, 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 the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (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 or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub Purchaser shall file or cause to be filed with the Securities and Exchange Commission (the "SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), ") a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments thereto, the "Schedule 14D-1") with respect to the Offer (together with all amendmentsOffer, supplements which shall contain the offer to purchase and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of 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 and supplements 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause Purchaser will disseminate 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. Each of Parent, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, Purchaser and the Company, on the other hand, agree to Company 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 or as otherwise required by Law. and Parent and Sub further agree to 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 Lawlaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed Offer Documents prior to their filing with the SEC, and . Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub Purchaser agree to provide the Company with any comments, whether written or oral, comments that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, be received from the SEC or its staff with respect to the Offer Documents, Documents promptly upon after receipt of such comments, thereof and any written or oral responses thereto, and to further provide the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to participate in all reasonable views and comments of substantive communications with the Company SEC and its legal counsel with respect thereto.
(c) Parent shall provide or cause staff relating to be provided to Sub promptly following the expiration of Offer Documents, 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 Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Lawtransactions contemplated thereby.
Appears in 2 contracts
Sources: Merger Agreement (Seneca West Corp), Merger Agreement (Harcor Energy Inc)
The Offer. (a) Provided that none of the conditions set forth in Annex I to this Agreement shall not have been terminated in accordance with Section 8.1 and none occurred, the Purchaser (or one or more other direct or indirect wholly-owned subsidiaries of the events described in any of paragraphs (aParent) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, not later than one business day after execution of this Agreement, publicly announce the transactions contemplated hereby, and Parent shall cause Sub tonot later than five business days after execution of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “"Exchange Act”")), an offer to purchase all Shares at a price of $24.00 per Share, net to the seller in cash (the "Offer," which term shall include any amendments to such Offer not prohibited by this Agreement) and, subject to a minimum of not less than a majority of the Offer within ten outstanding Shares (10on a fully-diluted basis) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares being validly tendered 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)the "Minimum Condition") shall be subject only to and the further conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub I of conditions set forth in Annex III heretothis Agreement, 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 (containing the “Offer to Purchase”) that contains the terms set forth in this Agreement Minimum Condition and the further conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase I. The Purchaser hereby covenants and agrees that it shall hold the Offer Price and to make any other changes in open for no less than 25 business days. Simultaneously with the terms commencement of the Offer; provided, however, that Sub the Purchaser shall not, file with the Securities and Parent shall cause Sub not to, decrease Exchange Commission (the "Commission") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer Price or change (the form of consideration in which any component of "Schedule 14D-1"). Notwithstanding the Offer Price is payableforegoing, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend event any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of I to this Agreement shall have occurred, the Purchaser may terminate the Offer. In the event the Purchaser terminates the Offer, in each case in any manner adverse it may, subject to the holders prior written approval of the Company Common StockBoard of Directors of the Company, impose any conditions seek the approval of the Company's stockholders for the Merger pursuant to the Offer that are not set forth on Annex III heretoapplicable provisions of the General Corporation Law of the State of Delaware, or extend as amended ("Delaware Law"), as provided in Section 6.11. In such event, the Offer beyond Company shall take all necessary action to call a date that is twenty-one 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.
(21b) business days after commencement The Purchaser expressly reserves the right to modify the terms and conditions of the Offer or the last extension (as permitted in accordance with this Section 1.1)from time to time, if anyexcept that, 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, 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 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 initial expiration date ifOffer may be extended beyond 60 days (subject to the Company's right of termination in Section 8.1 herein), at any scheduled (or extended) expiration without the prior written approval of the OfferCompany, any if all required waiting periods under applicable law have not expired or (viii) otherwise to amend the terms of the Offer (including the conditions set forth in Annex III hereto (other than the Minimum ConditionI) shall not be satisfied or waived for up in a manner that is materially adverse to two periods of not more than ten (10) business days per extension, (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 or interpretation stockholders of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActCompany.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 provisions of the Exchange Act. Parent and 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 Law. Parent and Sub, 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 respect or as otherwise required by Law. 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 disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to 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 may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, 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 to be 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 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 2 contracts
Sources: Merger Agreement (WDR Acquisition Corp), Merger Agreement (Wonderware Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 As promptly as practicable (and none of the events described in any of paragraphs event no later than October 14, 2008) after the date hereof, the Purchaser shall (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub the Purchaser to) commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations promulgated thereunder, thereunder (the “Exchange Act”)) , the Offer within ten to purchase all the outstanding Shares at the Offer Price, subject to: (10i) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares there being validly tendered in the Offer and not properly withdrawn prior to the expiration Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Offer Shares then outstanding (as it may be extended determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in accordance with requirements the election of directors or upon the adoption of this Section 1.1(aAgreement and approval of the Merger (collectively, the “Minimum Condition”); and (ii) shall be subject only 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 III hereto. I.
(b) Subject to the prior satisfaction of the Minimum Condition and the satisfaction or, to the extent waivable by Parent or the Purchaser, waiver by Parent or Sub the Purchaser, of the other conditions and requirements set forth in Annex III heretoI, Sub shall, the Purchaser shall (and Parent shall cause Sub the Purchaser to, consummate the Offer in accordance with its terms and ) accept for payment and pay for all Shares validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferOffer 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 contains describes the terms set forth and conditions of the Offer in accordance with this Agreement Agreement, including without limitation the Minimum Condition and the other conditions and requirements set forth in Annex III hereto. I. Parent and the Purchaser expressly reserves reserve the right to waive any of such conditions, to increase the Offer Price and or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub unless previously approved by the Company in writing, the Purchaser shall not, and Parent shall cause Sub not to, (i) decrease the Offer Price or Price, (ii) change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive or change the Minimum Condition Condition, (as defined in Annex III hereto), modify or v) amend any of the other conditions and requirements to the Offer set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, I in each case in any a manner materially adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III heretoShares, or (vi) extend the Offer beyond 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 twenty-one the later of (21i) business days after 20 Business Days following the commencement of the Offer or (ii) 45 calendar days following the last extension first public announcement of this Agreement by Parent (as permitted in either case, the “Initial Expiration Date”) or, if the Offer has been extended in accordance with this Section 1.1)Agreement, if anyat the time and date to which the Offer has been so extended (the Initial Expiration Date, of or such later time and date to which the OfferOffer has been extended in accordance with this Agreement, whichever is later (the “Expiration Date”).
(e) except as 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 belowin Annex I) have not been satisfied or, to the extent waivable by the Parent or the Purchaser pursuant to this Agreement, waived by Parent or the Purchaser, the Purchaser 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 the Purchaser in its sole discretion, in each case without order to permit the prior written consent satisfaction of such conditions; provided, however, that the Company (such consent Purchaser shall not be required to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, 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 the initial expiration date ifOutside Date; provided, at 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 (or extended) Company Representative, in accordance with Section 5.4(c), except to the extent that prior to the expiration of the OfferOffer 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, any 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 Outside Date”); provided, however that if all of the conditions set forth in Annex III hereto to the Offer (other than either or both of the Minimum HSR Condition or the Governmental Approval Condition) shall not be satisfied or waived for up to two periods , and regardless of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date whether the Minimum Condition is not then satisfied) have been satisfied or, for up to two periods the extent waivable by Parent or the Purchaser, waived by Parent and the Purchaser, as of ten the Initial Outside Date, the Outside Date shall be March 31, 2009 (10) business days per extension or (iii) the “Extended Outside Date”). In addition, the Purchaser shall extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the United States U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to Shares issuable upon the exercise of the Top-Up Option or Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), or the staff thereofPurchaser may, applicable to the Offer. In addition to the foregoing and excluded from any such limitationsin its sole discretion, Sub also may provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 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 pay for, all Shares that are validly tendered pursuant to the Offer 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) On 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, Parent and Sub the Purchaser shall file with the SEC, pursuant to Regulation M-A in accordance with Rule 14d-3 under the Exchange Act (“Regulation M-A”)Act, a Tender Offer Statement on Schedule TO with respect to the Offer (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 letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Parent 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 provisions of the Exchange Act. Parent and Sub Purchaser 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 Lawthe Exchange Act. Parent and Subthe 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 or as otherwise required by applicable Law. , and Parent and Sub further the Purchaser agree to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto the Offer Documents before it is they are filed with the SEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or modifications changes suggested thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any written comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Schedule TO or the Offer Documents, Documents promptly upon after receipt of such comments, and any written or oral responses thereto, and the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable views and comments of additions, deletions or changes suggested thereto by the Company and its legal counsel with respect theretocounsel.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Imclone Systems Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described or conditions set forth in any of paragraphs (a) or (b) of Annex III I hereto shall have occurred and be continuing (unless and not have been waived by Parent or Sub)Purchaser, Sub shallas promptly as reasonably practicable and, and Parent in any event, within ten (10) Business Days of the date of this Agreement, the Purchaser shall cause Sub to, 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 promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following to purchase for cash all Shares at the date hereofOffer Price. The obligations of Sub the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents a majority of the Shares outstanding on a fully-diluted basis (as it may be extended in accordance with requirements of this Section 1.1(a)the “Minimum Condition”) shall be subject only to and (ii) the other conditions set forth in Annex III I hereto. Subject to the prior satisfaction or waiver by Parent or Sub the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex III I hereto, Sub the Purchaser shall, and Parent shall cause Sub toin accordance with the terms of the Offer, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer promptly after expiration of the Offer. The Offer , which shall initially be made by means of an offer to purchase (the “Offer to Purchase”) that contains 20th Business Day following the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms commencement of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease (x) if on the Offer Price or change the form of consideration in which any component initial expiration date of the Offer Price is payable, decrease or on any subsequent scheduled expiration date of the number of Shares sought in the Offer, waive or change the Minimum Condition Offer (as defined extended in Annex III heretoaccordance with this Agreement), 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, in each case in any manner adverse to the holders of the Company Common Stock, impose any all conditions to the Offer that are shall not set forth on Annex III heretohave been satisfied or waived, or the Purchaser may, from time to time, in its sole discretion, extend the Offer beyond a for such period as the Purchaser may determine; provided, however, that if on the initial expiration date that is twenty-one (21) business days after commencement of the Offer or the last extension conditions to the Offer set forth in paragraphs (as permitted c), (d) and (e) of Annex I hereto shall each be satisfied (or, in accordance with this Section 1.1the case of paragraphs (d) and (e), if any, any such breach or failure to comply that has caused such non-satisfaction of the Offer, whichever condition is later objectively curable within ten (the “Expiration Date”10) 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, Business Days) but subject any other condition to the parties’ respective rights Offer shall not have been satisfied or waived, Purchaser shall be obligated to terminate this Agreement extend the Offer for one or more periods of time of up to ten (10) Business Days each (or such longer period as Purchaser may agree in accordance with Section 8.1writing) until such conditions have been satisfied or waived; provided, 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) that Purchaser shall not be required to extend the Offer beyond the date that is thirty (30) Business Days following the initial expiration date if, at any scheduled (or extended) expiration of the Offer; (y) the Purchaser may, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionits sole discretion, (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, interpretation or interpretation position of the SEC or the staff thereof applicable to the Offer; and (z) the 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 all of the other conditions set forth in Annex I hereto are satisfied or waived, but the number of 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, (C) amend or waive the Minimum Condition, (D) add to the conditions to the Offer set forth in Annex I hereto or modify such conditions in a manner adverse to the holders of Shares, (E) extend the Offer, except as permitted by this Section 1.1(a) or (F) make any other change in the terms 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, Purchaser shall accept for payment and pay for all Shares validly tendered during such subsequent offering period.
(b) On the date the Offer is commenced, Purchaser shall file with the United States Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendmentsOffer, supplements and exhibits theretowhich shall include the offer to purchase, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of the letter of transmittal and summary advertisement form of notice of guaranteed delivery (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to the Company’s compliance with Section 5.21.2(b), the Company hereby consents to the inclusion in the Offer Documents of the recommendation Parent 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 provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to Purchaser shall 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 Shares as and to the extent required by applicable LawU.S. federal securities laws. Each of Parent and Subthe 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 respect or as otherwise required by Law. Parent and Sub The Purchaser further agree agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case Shares as and to the extent required by applicable LawU.S. federal securities laws. 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 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto Offer Documents before it is they are filed with the SEC, SEC and Parent and Sub the Purchaser shall give due reasonable and good faith consideration to all reasonable additions, deletions or modifications thereto suggested any comments made by the Company and its legal counsel. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel with any comments, whether written comments or oral, communications that Parent, Sub the Purchaser or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer DocumentsDocuments promptly after Parent’s or the Purchaser’s, promptly upon as the case may be, receipt of such comments, and any written or oral responses thereto, and shall provide the Company 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. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration to all reasonable views be given), including by participating with Parent and comments of the Company and its legal Purchaser or their counsel in any discussions or meetings with respect theretothe SEC.
(c) Parent shall provide or cause to be 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 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 2 contracts
Sources: Merger Agreement (Kinetic Concepts Inc /Tx/), Merger Agreement (Lifecell Corp)