The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer. (b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments. (c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Lucent Technologies Inc), Merger Agreement (Yurie Systems Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly soon as practicable practicable, but in no event later than five (5) business days after from the date hereof, Newco shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase all outstanding shares of Company Common Stock at a price per share of $32.00 net to the seller in cash, without interest, subject only to all of the conditions set forth herein and in Annex I (together with any amendments or supplements thereto, the "Offer"). The per share amount shall be net to the seller in cash, upon the terms and subject to the conditions of the Offer and subject to reduction for any applicable federal, state, local or foreign back-up or other applicable withholding or stock transfer taxes. Subject to the provisions of this Agreement and the conditions set forth in Annex I, Newco shall keep the Offer open until at least midnight, New York City time, on the date twenty (20) business days from the date of the public announcement by Parent its commencement. As soon as legally permissible after such date and the time, Newco will accept for payment all shares of Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for Common Stock validly tendered pursuant to the Offer shall be and not withdrawn and pay for all such shares of Company Common Stock as promptly as practicable thereafter, in each case upon the 20th business day following terms and subject to the commencement conditions of the Offer. The obligation obligations of Sub Newco to accept for payment, payment and to pay for, for any Shares shares of Company Common Stock validly tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Annex I. The Offer shall be made by means of an offer to purchase (the "Offer Conditionsto Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex I.
(b) Newco expressly reserves the right to waive any of which may be waived conditions to the Offer, in whole or in part by Sub at any time or from time to time, in its sole discretiondiscretion (other than the conditions set forth in clauses (i) and (iii)(D) of Annex I), provided thatto increase the price per share payable in the Offer, to extend the duration of the Offer, or to make any other changes in the terms and conditions of the Offer; provided, however, that without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub Newco shall not (i) reduce decrease the number price per share of Shares subject Company Common Stock being offered pursuant to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in to be paid pursuant to the Offer, (iii) decrease the number of shares of Company Common Stock being sought pursuant to the Offer, (iv) amend or modify any of the conditions to the Offer or set forth in Annex I, (v) impose any additional conditions to the Offer, (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if all of the Offer conditions are satisfied or waived, or (vii) amend any other term or condition of the Offer. Notwithstanding anything to the contrary contained herein, Newco may, in its sole discretion and without the consent of Company, extend the Offer at any time and from time to time (A) if at the then scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions set forth in Annex I have not be satisfied or waived, until such time as such conditions are satisfied or waivedbeen satisfied, (B) extend the Offer for any period required by applicable law, including, without limitation, any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer or any period required by applicable law and (C) extend if all Offer conditions are satisfied or waived but the Offer on one or more occasions number of shares of Company Common Stock tendered is less than 90% of the then outstanding number of shares of Company Common Stock, for an aggregate period of not more than 10 5 business days (for all such extensions under this clause (C)) beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence; provided, if on such expiration date there shall not however, that in the event of any extension pursuant to clause (C), all conditions set forth in Annex I which would have been tendered at least 90% satisfied if the Offer had been consummated on the date of the outstanding Shares. such extension shall be deemed irrevocably waived by Parent and Sub agree that if all of Newco. So long as this Agreement is in effect and the conditions to the Offer Conditions are have not been satisfied on any scheduled expiration date or waived, at the request of the Offer 7 thenCompany, provided that all such conditions are reasonably capable of being satisfied, Sub Newco shall extend the Offer from time to time until for an aggregate period of not more than five business days (for all such conditions are satisfied or waived, provided that Sub shall not be required to extend extensions) beyond the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.originally scheduled expiration
Appears in 2 contracts
Sources: Merger Agreement (Atlas Copco North America Inc), Merger Agreement (Prime Service Inc)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Section 8.1, (i) as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this AgreementOctober 25, 2010, Merger Sub shall, and Parent shall cause Merger Sub to, file with the Ohio Division of Securities and the Company a Form 041 and such other documents as may be required in accordance with Section 1701.041 of the Ohio Revised Code, and (ii) as promptly as practicable but in no event later than one Business Day after clearance of the Form 041, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the SEC. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Merger Sub to, and of Parent to cause Merger Sub to to, accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit Annex A (collectively, the "“Offer Conditions"”).
(b) The Offer may not be terminated prior to its scheduled expiration (any of which as such expiration may be waived extended or re-extended in whole or accordance with this Agreement and applicable Law), unless this Agreement is terminated in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreementaccordance with Section 8.1. Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend waive or change the Minimum Tender Condition (as defined in Annex A), (iv) add to the Offer Conditions, (iv) except as provided Conditions or modify any of the Offer Conditions in a manner adverse to the next sentence, extend the Offerholders of Shares, (v) extend the Offer (except as expressly provided below), (vi) change the form of consideration payable in the Offer or (vivii) otherwise amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof or of Amex applicable to the Offer or any period required by applicable law and Offer.
(Cc) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled The initial expiration date of the Offer 7 thenshall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-2(a) promulgated by the SEC under the Exchange Act). If at the initially scheduled or any extended expiration date of the Offer, provided that all such conditions any of the Offer Conditions (other than any Offer Conditions which by their nature are reasonably capable to be satisfied at the closing of being satisfiedthe Offer) are not satisfied or, if permitted, waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time for one or more periods ending not later than the Outside Date to time until permit such conditions are satisfied or waived, Offer Conditions to be satisfied; provided that Merger Sub shall not be required to extend the Offer beyond September 28the Outside Date. If, 1998. Subject following the expiration of the Offer, fewer than 90% of the issued and outstanding Shares are accepted for payment pursuant to the Offer, then Merger Sub may, and at the request of the Company, shall, and upon any such request of the Company, Parent shall cause Merger Sub to, make available a “subsequent offering period,” in accordance with Rule 14d-11 promulgated by the SEC under the Exchange Act.
(d) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly after the expiration of the Offer, accept for payment, and pay for, payment all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for paymentOffer, and (ii) promptly after the Acceptance Time, pay forthe Offer Price for such Shares. For the avoidance of doubt, the parties hereto agree that vested shares of Restricted Stock may be tendered in the Offer and be acquired by Parent or Merger Sub pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(be) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(f) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain an offer to purchase and a related letter form of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Company shall promptly provide Parent and Sub agree with all information relating to the Company that the Offer Documents shall comply as is required to form be included in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given and hereby consents 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsDocuments of the recommendations of the Company Board and the Special Committee described in clauses (iii) and (iv) of the second sentence of Section 3.3(b) and clause (iii) of the first sentence of Section 3.3(b). Each of Parent, Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and any amendments or supplements thereto prior to their filing such documents with the SEC or dissemination disseminating such documents to the stockholders of the CompanyCompany and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to such comments. Parent and Merger Sub shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to review and provide comments on that response (to which reasonable and good faith consideration shall be given) and shall provide the Company and its counsel with a copy of any written response sent to the SEC and telephonic notice of any oral responses or discussions with SEC staff.
(cg) After the date hereof and prior to the date of commencement of the Offer, and as reasonably requested by Parent, the Company shall assist Parent in the preparation of Form 041 pursuant to Ohio Revised Code Section 1707.041. Each of Parent, Merger Sub and the Company shall provide promptly correct any information provided by it for use in the Form 041 if and to the extent that such information shall have become false or cause to be provided to misleading in any material respect, and each of Parent and Merger Sub on a timely basis the funds shall take all steps necessary to accept for paymentamend or supplement the Form 041, as and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offerextent required by applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Hawk Corp), Merger Agreement (Carlisle Companies Inc)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have terminated in no event later than five business days after the date accordance with its terms and provided that none of the public announcement by Parent events set forth in clauses (a)-(c) of Annex A shall have occurred and the Company of this Agreementbe continuing, Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) commence (within the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement meaning of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 Rule 14d-2 under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and together with the rules and regulations promulgated thereunder thereunder, the “Exchange Act”)) a cash tender offer to purchase all of the issued and outstanding shares of the Offer DocumentsCompany Common Stock for $7.20 U.S. Dollars per share of Company Common Stock (such amount, on or any greater amount per share of Company Common Stock paid pursuant to the offer, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”) no earlier than fourteen (14) days and no later than twenty (20) days after the date first published, sent or given to the Company's stockholders, shall hereof (unless such date is 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 thereinbusiness day, in light of which case the circumstances under which they were madefirst business day after the date that is fourteen (14) days or twenty (20) days, not misleadingas applicable, except that no representation or warranty is made by Parent or Sub with respect to information supplied by after the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Companydate hereof). Parent and shall cause Merger Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay forMerger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any Shares that event not more than the fourth business day) following the Expiration Date (as defined below).
(b) The obligation of Merger Sub becomes obligated to accept for payment, purchase and pay for, for any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall only be subject to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be equal to or greater than fifty and one tenth percent (50.1%) of the sum of the shares of Company Common Stock then outstanding on a fully-diluted basis (including as outstanding only options that are vested as of that date or may vest prior to the Merger Outside Date) and (ii) the other conditions set forth in Annex A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer Conditions”). Merger Sub 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 Per Share Amount 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 1.1(h)), changes the form of consideration payable in the Offer, imposes conditions to the Offer in addition to the Tender Offer Conditions, decreases the number of shares of Company Common Stock subject to the Offer, reduces the time period during which the Offer shall remain open, or modifies or amends the Offer in any manner adverse to the Company Shareholders.
(c) Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, at the end of the later of (i) 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) or (ii) May 13, 2011 (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 Section 1.1(d) or as required by Applicable Laws (defined in Section 9.3) or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
Appears in 2 contracts
Sources: Merger Agreement (Coleman Cable, Inc.), Merger Agreement (Technology Research Corp)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event event, subject to the Company having timely provided any information required to be provided by it pursuant to Section 1.1(e) and Section 1.2(c)), later than five business days ten (10) Business Days after the date of the initial public announcement by Parent and the Company of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The initial expiration date for Offer within the Offer shall be the 20th business day following the commencement meaning of the Offer. applicable rules and regulations of the SEC.
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and thereafter pay for, any Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (collectively, the "“Offer Conditions"”). The Offer shall initially be scheduled to expire at one minute after 11:59 p.m., New York City time, on the 20th business day (determined using Rule 14d-1(g)(3) of the Exchange Act) following the commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer. Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of which may be waived the Offer in whole or in part by Sub in its sole discretionany manner not inconsistent with this Agreement, provided except that, without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) not, and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub Parent shall not permit Merger Sub to, (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, (iv) waive, amend or modify the Minimum Tender Condition, the Regulatory Condition, the Absence of Legal Restraint Condition or the Termination Condition, (v) impose conditions or requirements to the Offer other than the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares (in their capacity as such), (vi) except as otherwise provided in this Section 1.1, terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vii) otherwise amend, modify or supplement any other term of the terms of the Offer in any manner adverse to the holders of Shares or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the SharesExchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without and Parent shall cause Merger Sub to, on the consent terms and subject to the Offer Conditions and conditions of the CompanyOffer and this Agreement, (A) extend the OfferOffer for one or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be mutually agreed by Parent and the Company), if at the scheduled or extended expiration date time of the Offer the Minimum Offer Condition or any of the other Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are shall have been satisfied or waived, waived and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; provided, however, that, notwithstanding the foregoing, if at the otherwise scheduled expiration time of the Offer, each Offer or Condition (other than the Minimum Tender Condition and any period required conditions that by applicable law and (C) extend their nature are to be satisfied at the expiration of the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date and that would otherwise be permitted under clause (Acapable of being satisfied or waived by Parent were the expiration of the Offer to occur at such time) shall have been satisfied or (B) of this sentence, if on such expiration date there waived and the Minimum Tender Condition shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Merger Sub and Parent shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required have no obligation to extend the Offer in such circumstances on more than three (3) occasions, with each such extension to be for ten (10) Business Days unless the Company agrees otherwise in writing; provided further that in no circumstances shall Merger Sub or Parent extend the Offer such that the Acceptance Time would occur beyond September 28, 1998. Subject to the End Date.
(c) On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (i) accept for payment, and pay for, payment all Shares validly tendered and not properly withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable immediately after the expiration of the Offer (and in any event prior to 8:00 a.m., New York City time, on the first Business Day starting at (if the expiration time occurs on a Business Day) or following (if the expiration time does not occur on a Business Day) the expiration time of the Offer) (the time of such acceptance, the “Acceptance Time”) and (ii) pay the Offer Price for such Shares promptly after (and, in any event, no later than the second Business Day after) the Acceptance Time.
(bd) On The Offer may not be terminated prior to its expiration date (as such expiration date may be extended in accordance with this Section 1.1), unless this Agreement is validly terminated in accordance with Section 7.1. If this Agreement is validly terminated in accordance with Section 7.1, Merger Sub shall, and Parent shall cause Merger Sub to, immediately, irrevocably and unconditionally terminate the Offer, and Merger Sub shall neither acquire nor pay for Shares pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof. Nothing contained in this Section 1.1 shall affect any termination rights set forth in Section 7.1.
(e) As promptly as reasonably practicable on the date of commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement tender offer statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any exhibits, supplements or amendments thereto, the "“Offer Documents"). Parent ”) and Sub agree that shall disseminate the Offer Documents to the holders of Shares as and to the extent required by applicable U.S. federal securities Laws. The Company shall comply as furnish to form in Parent and Merger Sub all material respects with information concerning the Securities Company required by the Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaws. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments. Except from and after a Change of Recommendation, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or its staff or the dissemination thereof to the holders of Shares, or responding to any comments of the SEC or its staff 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 such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(cf) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
(g) Without limiting the other provisions of this Agreement, if, between the date of this Agreement and the Acceptance Time, the outstanding Shares shall have been changed into a different number of shares or a different class of shares by reason of any stock dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination, exchange of shares or other similar transaction, then the Offer Price shall be equitably adjusted, without duplication, to proportionally reflect such change.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement---------- Agreement including those set forth in Annex B hereto, as promptly as practicable but in no event later than five business days Business Days after the date of the public announcement by Parent and the Company of this Agreement, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, commence the Offer. The initial expiration date for Offer within the Offer shall be the 20th business day following the commencement meaning of the Offerapplicable Regulations of the SEC. The obligation of Sub Purchaser to, and of Parent to cause Purchaser to, commence the Offer or accept for payment, and or pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") Annex B (any of which may be waived in whole or in part by Sub Purchaser in its sole discretion, and reasonable judgment provided that, without the prior written consent of the Company, Sub shall Purchaser may not -------- waive the Minimum Condition (as defined in Exhibit A)Tender Condition) and to the terms and conditions other provisions of this Agreement. Sub The initial expiration date of the Offer shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-1(e)(6) under the Exchange Act). Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub Purchaser shall not (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) amend modify or add to the Offer Conditionsconditions set forth in Annex B in any manner adverse to the holders of shares of Company Common Stock, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of the Sharesshares of Company Common Stock. Notwithstanding the foregoing, Sub Purchaser may, without the consent of the Company, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Purchaser's obligation to purchase shares of Company Common Stock are not be satisfied or waivedsatisfied, until such time as such conditions are satisfied or waived; provided, -------- however, that the expiration date shall not be later than the Termination Date ------- as a result of such extension, (Bii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension (x) less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer and (y) Purchaser has permanently waived all of the conditions to the Offer set forth in Annex B (other than conditions that are not legally capable of being satisfied and conditions that have not been satisfied because of the willful or intentional action or inaction of the Company), and (iii) extend the Offer for any period required by any rule, regulationRegulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentenceOffer. If, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all any of the conditions set forth in Annex B have not been satisfied or waived and such unsatisfied conditions are reasonably still capable of being satisfied, Sub shall the Company may require Purchaser to extend the expiration date of the Offer from time to time until such conditions are satisfied or waivedfor a period of not more than 10 Business Days; provided, provided however, that Sub Purchaser shall not be -------- ------- required to extend the Offer beyond September 28, 1998expiration date later than the Termination Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, accept pay for payment, and pay for, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub Purchaser becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) On the date of the commencement of the Offer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (the "Schedule 14D-1") with respect to the Offer, which shall will contain an offer to purchase and a form of the -------------- related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Purchaser, --------------- and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable federal securities lawsLaws. The Parent and Purchaser agree to give the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing of the Offer Documents with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub agree Purchaser agrees to provide the Company and its counsel in writing with any comments Parent, Sub or their Purchaser and its counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsthereof.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof and so long as none of the provisions of this Agreementevents set forth on Annex B hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as promptly as practicable but in no event later than five business days after the date of this Agreement (but in any event no later than ten (10) Business Days after the public announcement by Parent execution and the Company delivery of this Agreement), Sub shall, and Parent Acquisition shall cause Sub to, commence (within the Offer. The initial expiration date for meaning of Rule 14d-2 promulgated under the Offer shall be the 20th business day following the commencement of Exchange Act) the Offer. The obligation of Sub Acquisition to accept for payment, payment and to pay for, for any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Tender Offer Conditions") (, any of which may be waived by Buyer or Acquisition in whole or in part by Sub in its their sole discretion; provided, provided thathowever, that Acquisition shall not waive the Minimum Condition without the prior consent of the Company. The Tender Offer Conditions are for the sole benefit of Buyer and Acquisition and may be asserted by Buyer and Acquisition regardless of the circumstances giving rise to any such Tender Offer Conditions.
(b) Buyer and Acquisition expressly reserve the right to modify the terms of the Offer; provided, however, that Acquisition shall not, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any additional conditions to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (viv) change the form of consideration payable in the Offer or Offer, (viv) amend make any other term change to the terms of the Offer that is materially adverse in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, or (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bvi) extend the Offer for any period required by any rule, regulation, interpretation except as set forth in Section 2.1(d).
(c) Assuming prior satisfaction or position waiver of the Securities and Exchange Commission (Tender Offer Conditions, Acquisition shall, as soon as legally permissible after the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% commencement of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toOffer, accept for payment, and pay forin accordance with the terms of the Offer, all the Shares which have been validly tendered and not withdrawn pursuant at or prior to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(bd) On Acquisition shall extend the date of commencement Offer for one ten (10) Business Day period if (i) the Minimum Condition is not satisfied and (ii) all other Tender Offer Conditions are satisfied at the expiration of the Offerinitial twenty (20) Business Day Offer period, Parent and Sub shall file with the SEC a Tender Offer Statement thereafter, if, on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to any date on which the Offer will be madeis scheduled to expire, together with any supplements Tender Offer Conditions have not been satisfied or amendments theretowaived, Acquisition may, without the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act consent of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and in its counsel any comments Parentsole discretion, Sub or their counsel may receive from the SEC or its staff with 8 respect to extend the Offer Documents promptly after from time to time for successive extension periods for up to ten (10) Business Days on each occasion beyond the receipt of then scheduled expiration date, as Acquisition reasonably determines is necessary to permit such comments.
(c) Parent shall provide or cause Tender Offer Condition to be provided satisfied, until the earlier to Sub on a timely basis occur of (A) the funds necessary to accept for paymentTermination Date, or (B) the date such conditions are satisfied or earlier waived and pay for, any Shares that Sub Acquisition becomes obligated to accept for payment, payment and pay for, for Shares tendered pursuant to the Offer.. Buyer and Acquisition may amend the Schedule TO to permit the announcement of a subsequent offering period (as such term is defined in Rule 14d-1 promulgated under the Exchange Act (the "Subsequent Offer Period")) to the Offer, and Acquisition may include a Subsequent Offer Period to the Offer for up to a maximum of twenty (20)
Appears in 2 contracts
Sources: Merger Agreement (T Netix Inc), Merger Agreement (T Netix Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable practicable, but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Merger Sub to, and of Parent to cause Merger Sub to to, accept for payment, and payment or pay for, for any Company Common Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A hereto. The initial expiration date of the Offer shall be January 3, 2001 (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Offer ConditionsExchange Act") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub expressly reserves the right to waive any condition to the Offer or to modify the terms of the Offer, except thatin each case in its sole discretion; provided, however, that without the consent of the Company, Merger Sub shall not (i) reduce the number of Company Common Shares subject to the Offer, (ii) reduce the price per Company Common Share to be paid pursuant to the Offer Priceor change the form or time of delivery of consideration, (iii) amend or waive the Minimum Tender Condition (as defined in Exhibit A hereto) or add to the Offer Conditionsconditions set forth in Exhibit A hereto, (iv) except as provided below in the next sentencethis Section 1.1(a), extend the Offer, or (v) change otherwise amend the form of consideration payable in the Offer or (vi) amend any other term terms of the Offer in any manner adverse to the holders of the Company Common Shares. Notwithstanding the foregoing, Merger Sub may, at any time and from time to time, and, in each case, subject to Section 8.1 hereof, take one or more of the following actions without the consent of the Company, : (A) extend the OfferOffer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions to the Offer to be satisfied, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Merger Sub's obligation to accept Company Common Shares for payment is not be satisfied or waived, until such time as all such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof that is applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (A) or (B) of this sentence, if on if, as of such expiration date there shall date, all of the conditions to Merger Sub's obligation to accept Company Common Shares for payment (including the Minimum Tender Condition) are satisfied or waived, but the number of Company Common Shares validly tendered and not have been tendered at least withdrawn pursuant to the Offer equals less than 90% of the outstanding SharesCompany Common Shares (determined on a fully diluted basis for all outstanding stock options, convertible securities and any other rights to acquire Company Common Stock on the date of purchase). Without limiting the rights of Merger Sub to extend the Offer pursuant to the immediately preceding sentence, Parent and Merger Sub agree that if (I) (x) all of the conditions to the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all (y) such conditions are reasonably capable of being satisfiedsatisfied within 30 days after the initial expiration date of the Offer and (z) the Company is in compliance with all of its covenants in this Agreement, or (II) any rule, regulation, interpretation or position of the SEC or the staff thereof that is applicable to the Offer requires an extension of the Offer, then Merger Sub shall extend the Offer from for one or more periods of time that Merger Sub reasonably believes are necessary to time cause the conditions of the Offer to be satisfied, until all such conditions are satisfied or waived; provided, provided however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond September 28the 30th day after the initial expiration date of the Offer, 1998unless otherwise required pursuant to (II) above. Subject to Section 8.1 hereof, Merger Sub may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act, following its acceptance of Company Common Shares for payment pursuant to the Offer. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment, and pay for, all Company Common Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On As soon as practicable on the date of commencement of the Offer, Merger Sub shall, and Parent and shall cause Merger Sub shall to, file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (such Tender Offer Statement, together with all amendments and supplements thereto, the "Schedule TO"), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included contained therein pursuant to which the Offer will be made, in each case together with any all supplements or and amendments thereto, the "Offer Documents"). Parent and Merger Sub (i) agree that that, on the date on which the Schedule TO is filed with the SEC and on each date on which any amendment or supplement to any Offer Document is filed with the SEC, the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder thereunder, and the Offer Documents(ii) represent and warrant that, on the date first published, sent or given to Shareholders, the Company's stockholders, shall Offer Documents 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, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied in writing by or on behalf of the Company or any of its stockholders officers or directors specifically for inclusion or incorporation by reference in the any Offer DocumentsDocument. Each of ParentParent and Merger Sub (or the Company, Sub and in the case of any information supplied by or on behalf of the Company or any of its officers or directors specifically for inclusion or incorporation by reference in any Offer Document) agree promptly to correct any information provided by it for use contained in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents to reflect such correction and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersShareholders, in each case as and to the extent required by applicable federal Federal and state securities laws. The Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents (including, without limitation, any amendment or supplement thereto) prior to their filing with the SEC or dissemination to the stockholders of the CompanyShareholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any written comments (and orally, with any oral comments) that Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments.
(c) Parent shall provide or cause The parties hereto agree to promptly file with the Commonwealth of Massachusetts any registration statement relating to the Offer required to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, filed pursuant to Chapter 110C of the Offer.Massachusetts
Appears in 2 contracts
Sources: Merger Agreement (Minnesota Mining & Manufacturing Co), Merger Agreement (Minnesota Mining & Manufacturing Co)
The Offer. (a) Subject to this Agreement not having been terminated in accordance with the provisions of this AgreementSection 8.1 hereof, Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable practicable, but in no event later than five business days after from the date of the public announcement by Parent and of the Company terms of this Agreement or the Offer, commence an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement "OFFER") all of the Offer. The obligation Company's outstanding shares of Sub to accept for paymentcommon stock, and pay forno par value (the "SHARES"), any Shares tendered pursuant to the Offer shall be subject only 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) accept for payment and pay for all Shares tendered pursuant to the Offer Conditions"as promptly as practicable following the expiration date of the Offer, and (ii) (any extend the period of time the Offer is open until the first business day following the date on which may be the Conditions are satisfied or waived in whole 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 in part by Sub in its sole discretion, provided that, without agreements contained herein and (y) Purchaser shall be permitted but shall not be obligated to extend the prior written consent time the Offer is open if there is a reasonable likelihood that one or more of the CompanyConditions cannot be satisfied; and provided, Sub 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 waive be satisfied. Purchaser expressly reserves the Minimum Condition (as defined in Exhibit A)) and right to amend the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer; provided, except that, that without the consent of the Company, Sub shall not no amendment may be made -------- which (i) reduce decreases the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend price per Share or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change 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 (vi) amend amends any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to Upon the terms and conditions subject to the Conditions, Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay forOffer, all Shares validly tendered and not withdrawn pursuant prior to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(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 a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which tender into the Offer will be madeany Shares beneficially owned by it; provided, together with that Shares held beneficially or of record -------- by any supplements plan, program or amendments thereto, arrangement sponsored or maintained for the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act benefit of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement employees 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion Subsidiaries shall not be deemed to be held by the Company regardless of whether the Company has, directly or incorporation by reference indirectly, the power to vote or control the disposition of such Shares. For purposes of this Agreement, "SUBSIDIARY" means, as to any Person (as defined below), any corporation, partnership or joint venture, whether now existing or hereafter organized or acquired: (a) in the Offer Documents. Each case of Parenta corporation, Sub and of which at least a majority of the Company agree promptly outstanding shares of stock having by the terms thereof ordinary voting power to correct elect a majority of the board of directors of such corporation (other than stock having such voting power solely by reason of the happening of any information provided contingency) is at the time directly or indirectly owned or controlled by it for use such Person and/or one or more of its Subsidiaries or (b) in the Offer Documents if and to the extent that such information shall have become false case of a partnership or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersjoint venture, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC which such Person or dissemination to the stockholders a Subsidiary of such Person is a general partner or joint venturer or of which a majority of the Companypartnership or other ownership interests are at the time owned by such Person and/or one or more of its Subsidiaries. Parent and Sub agree to provide the Company and its counsel For purposes of this Agreement, "PERSON" means any comments Parentindividual, Sub corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsother entity.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Forum Group Inc), Merger Agreement (Marriott International Inc)
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the provisions Offer pursuant to any of this Agreementthe conditions set forth in Annex I, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Exchange Act) the Offer shall be at the 20th business day following the commencement of the OfferOffer Price. The Parent’s and Merger Sub’s obligation of Sub to accept for payment, and pay for, any Shares for shares of Company Common Stock tendered pursuant to in the Offer shall be subject only to 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 hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock subject to a Sale and Support Agreement (the “Committed Shares”), represents at least two-thirds (or such lesser number as may be determined by Parent and Merger Sub) of all shares of Company Common Stock then outstanding (the “Minimum Condition”) and to the other conditions set forth in Exhibit A (Annex I. Merger Sub expressly reserves the "Offer Conditions") (right to waive any of which may be waived the conditions to the Offer and to make any change in whole the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement, the Sale and Support Agreement or previously approved by the Company in part by Sub in its sole discretionwriting, provided that, without the prior written consent of the Company, Sub shall not waive (i) the Minimum Condition may not be waived below that number of shares of Company Common Stock that, together with the Committed Shares, represents a majority of all shares of Company Common Stock then outstanding, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of shares of Company Common Stock sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the Offer in any manner materially adverse to the holders of shares of Company Common Stock and (iii) the Offer may not be extended except as defined set forth in Exhibit Athis Section 1.1(a)) and . Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce extend the Offer Price(1) if, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions are satisfied or waivedconditions, (By) extend the reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the Walk-Away Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Sub, and (z) the Walk-Away Date, and (2) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend Law. Following expiration of the Offer on Offer, Merger Sub may, in its sole discretion, provide 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 subsequent offering periods (Aeach, a “Subsequent Offering Period”) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% in accordance with Rule 14d-11 of the outstanding Shares. Parent and Sub agree that if all Exchange Act, if, as of the Offer Conditions are not satisfied on any scheduled expiration date commencement of each such period, the Offer 7 then, provided that all such conditions are reasonably capable number of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions shares of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period, together with the Committed Shares, is less than that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of shareholders of the Company, in accordance with Section 5.16 of TBCA. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Sub becomes obligated to shall, and Parent shall cause Merger Sub to, accept for payment, payment and pay for, as promptly as practicable, all shares of Company Common Stock (A) validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after the final expiration of the OfferOffer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase Purchase and a related forms of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). Parent , and Sub agree that (ii) cause the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities laws 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 or warranty is made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agree agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Merger Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub agree to shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide those comments or cause to be provided to Sub on a timely basis the funds necessary to accept for paymentother communications, and pay for(B) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to discussions or meetings with the OfferSEC.
Appears in 2 contracts
Sources: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable (but in no any event not later than five business days after the date public announcement of the public announcement by Parent execution and the Company delivery of this Agreement), Sub shall, and Parent shall will cause Sub to, to commence (within the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement meaning of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 Rule 14d-2 under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer whereby Sub will offer to purchase up to 49.9% of the Shares at a price of $55 per Share, net to the seller in cash (as paid pursuant to the Offer, the "Offer Consideration"). The obligation of Parent to cause Sub to commence the Offer, to consummate the Offer and to accept for payment and to pay for Shares validly tendered in the Offer and not withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto.
(b) Without the prior written consent of the Company, Sub will not, and Parent will cause Sub not to, (i) decrease or change the form of the Offer Consideration, (ii) change the conditions to the Offer or impose additional conditions to the Offer, (iii) increase the number of Shares to be purchased pursuant to the Offer to more than 50.1% of the number of Shares (calculated on a fully diluted basis), (iv) extend the expiration date of the Offer (the "Expiration Date") except (A) as required by Law and (B) that, in the event that any condition to the Offer is not satisfied or waived at the time that the Expiration Date would otherwise occur, (1) Sub must extend the Expiration Date for an aggregate of 20 additional business days (the "First Extension Date") to the extent necessary to permit such condition to be satisfied and (2) Sub may, in its sole discretion, extend the Expiration Date for up to 20 additional business days after the First Extension Period, or (v) amend any term of the Offer in any manner materially adverse to holders of Shares (including without limitation to result in any extension which would be inconsistent with the preceding provisions of this sentence), provided, however, that (1) subject to applicable legal requirements, Parent may cause Sub to waive any condition to the Offer, other than the Minimum Share Condition and the Tax Opinion Condition (each as defined in Annex A), in Parent's sole discretion and (2) the Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations promulgated thereunder and the Offer Documents, 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 Securities and Exchange Commission (the "SEC"). Assuming the prior satisfaction or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders waiver of the Company. conditions of the Offer, Parent and will cause Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any in accordance with the terms of the Offer, all Shares that Sub becomes obligated to accept for payment, validly tendered and pay for, not withdrawn pursuant to the OfferOffer as soon as practicable after the Expiration Date or any extension thereof.
Appears in 2 contracts
Sources: Merger Agreement (Dynamics Corp of America), Agreement and Plan of Merger (CTS Corp)
The Offer. SECTION 1.1 The Offer
(a) Subject to Provided that none of the provisions of this Agreementevents set forth in Annex A hereto shall have occurred, as promptly as practicable practicable, but in no event later than five business days after the date public announcement of the public announcement execution hereof by Parent and the Company of this Agreementparties, Sub shall, and Parent shall cause Sub tocommence (within the meaning of Rule 14d-2 under the Securities and Exchange Act of 1934, commence as amended (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. The initial expiration date for , being referred to herein as the "Offer shall be the 20th business day following the commencement of the OfferPrice"). The obligation of Sub Parent to accept for payment, payment and to pay for, for any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A hereto.
(the "Offer Conditions"b) (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer Offer, decrease the number of Shares sought pursuant to the Offer, add additional conditions to the Offer, or (vi) amend make any other term changes in the terms or conditions of the Offer in any manner which are otherwise materially adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, Shares without the prior written consent of the CompanyCompany (acting through the Special Committee, as defined in Section 1.2(a) below). Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (A20) business days from the date the Offer is commenced; provided, however, that without the Special Committee's consent, Parent may (i) from time to time extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Conditions shall not be satisfied or waived, until such time as such conditions are have been satisfied or waived, (Bii) extend the Offer offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence. In addition, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenany of the conditions of the Offer have not been satisfied or waived by Parent, provided that all such conditions but are reasonably capable of being satisfiedsatisfied in the reasonable, Sub good faith judgment of Parent, then, on the written request of the Company (acting through the Special Committee), Parent shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject for up to twenty (20) business days from the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the then- scheduled expiration date of the Offer.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer, which and a Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto and including all exhibits thereto, the "Schedule 13E-3"). The Schedule 14D-1 shall contain as an offer exhibit or incorporate by reference the Offer to purchase Purchase (or portions thereof) and a forms of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents")advertisement. Parent and Sub agree that the Schedule 14D-1, the Offer Documents to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents"), and the Schedule 13E-3, shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel counsel, and the Special Committee and its counsel, shall be given reasonable an opportunity to review and comment upon the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub agree to provide the Company and its counsel in writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Ast Research Inc /De/), Merger Agreement (Samsung Electronics Co LTD /Fi)
The Offer. (a) On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Guarantor, Parent and Merger Sub filed with the SEC 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”) that incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary advertisement and such other customary documents included therein (the Schedule TO, the Offer to Purchase and such other documents pursuant to which the Offer is being made, the “Offer Documents”).
(b) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than five business days three Business Days after the date of the public announcement by Parent and the Company of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The initial expiration date for offer to purchase (as so amended and supplemented, the “Offer shall be to Purchase”) and the 20th business day following other Offer Documents, in each case in accordance with the commencement terms of this Agreement, (as so amended and supplemented, the Offer. The obligation of Sub “Amended Offer Documents”), including to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to reflect the conditions set forth in Exhibit A Annex I (the "“Offer Conditions"”) and file with the SEC the Amended Offer Documents.
(c) Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of which may be waived the Company) and (iii) make any other changes in whole or the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in part each case subject to extending the Offer as required by Sub in its sole discretionapplicable Law; provided, however, that unless otherwise provided thatby this Agreement, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (iA) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (vB) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer or Conditions, (viE) amend or modify any other term of the Offer Conditions or any of the terms of the Offer in any a manner adverse to the holders of Shares or that would, individually or in the Shares. Notwithstanding aggregate, reasonably be expected to prevent, materially delay or impair the foregoingability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, without at its sole discretion prior to the consent expiration of the Company, (A) extend the Offer, if waive or change the Minimum Condition to remove the proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) provides written notification of such determination to the Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (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 Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (New York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (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 and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or extended expiration date of the Offer any of the other Offer Conditions shall have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waivedwaived by Parent or Merger Sub if permitted hereunder, until then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such time other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions are satisfied (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or waivedotherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and
(ii) Merger Sub shall, (B) and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by any rule, regulationapplicable Law, interpretation or position of the Securities and SEC or its staff or the New York Stock Exchange Commission LLC (the "SEC"“NYSE”) or the staff thereof its staff, in each case applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Merger Sub shall not be required to extend the Offer beyond September 28the Outside Date.
(f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer; provided, 1998that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the Company if, immediately following the expiration of the Offer, the Short Form Threshold has not been reached and cannot be reached through the immediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the 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 shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment(i) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and pay forunconditionally terminate the Offer, all (ii) not acquire any Shares validly tendered and not withdrawn pursuant to the Offer that and (iii) cause any depository acting on behalf of Merger Sub becomes obligated to accept for paymentpromptly return, and pay forin accordance with applicable Law, pursuant all tendered Shares to the Offer as promptly as practicable after the expiration of the Offerregistered holders thereof.
(bh) On The Company shall cooperate fully in the date of commencement preparation of the Offer, Amended Offer Documents to reflect the terms of this Agreement and the Company and its counsel shall be given a reasonable opportunity to review the Amended Offer Documents before they are filed with the SEC. Parent and Merger Sub agree that they shall file cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, on including in connection with communicating the date first published, sent or given Offer 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 record and beneficial holders of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Shares. Each of Parent or and Merger Sub shall use its reasonable best efforts to resolve all SEC comments with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Amended Offer DocumentsDocuments as promptly as reasonably practicable after receipt thereof. Each of Parent, Merger Sub and the Company agree promptly agrees to correct any information provided by it for use in the Amended Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect, and misleading. Each of Parent and Merger Sub further agree to take all steps necessary to cause shall as soon as reasonably practicable notify the Schedule 14D-1 as so corrected to be filed with Company of the receipt of any comments from the SEC and with respect to the other Amended Offer Documents as so corrected to be disseminated and any request by the SEC for any amendment to the Company's stockholdersAmended Offer Documents or for additional information and shall provide the Company with copies of all such comments and correspondence. Prior to filing or mailing the Amended Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, in each case as of Parent and to Merger Sub shall provide the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon to propose comments on such document or response and shall, in good faith, consider and incorporate the Offer Documents prior to their filing with the SEC or dissemination to the stockholders reasonable comments of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Reckitt Benckiser Group PLC), Merger Agreement (Schiff Nutrition International, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but and provided that this Agreement shall not have been terminated in no event later than five business days after accordance with Section 9.1 and subject to the date satisfaction or waiver of each of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant conditions to the Offer shall be subject only to the conditions set forth in Exhibit Annex A to this Agreement (the "Offer Conditions"), not later than the tenth (10th) business day from the date of public announcement (any of counting the business day on which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent such announcement is made) of the Company, Sub execution of this Agreement (which date of announcement shall not waive be no later than the Minimum Condition (as defined in Exhibit A)) and to first business day after the terms and conditions execution of this Agreement. Sub expressly reserves the right to modify the terms of the Offer), except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent Acquiror shall cause Merger Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to commence (within the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration meaning of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), and the rules and regulations promulgated thereunder and the Offer Documentsat a price equal to the Common Stock Price for each and every share of Company Common Stock. The obligation of Merger Sub to consummate the Offer, to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject solely to the satisfaction or waiver of the Offer Conditions. It is agreed that the Offer Conditions are for the benefit of Merger Sub and may be asserted by Merger Sub regardless of the circumstances giving rise to any such condition and Merger Sub expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of Company, Merger Sub shall not waive the Minimum Condition (as defined in Annex A) or the condition set forth in paragraph (f) of Annex A. The initial time and expiration date of the Offer shall be 12:00 midnight Eastern Standard Time on the date first publishedthat is the 20th business day following the commencement of the Offer (determined using Rule 14d-2 under the Exchange Act) (the "Scheduled Expiration Date" and any date to which the Offer is extended as permitted by Section 1.1(b) shall be referred to herein as the "Extended Expiration Date").
(b) Merger Sub expressly reserves the right, sent or given in its sole discretion, to modify and make changes to the terms and conditions of the Offer, provided, that without the prior written consent of Company (which consent will not be valid unless authorized by the Board of Directors of Company), no modification or change may be made which (i) decreases the consideration payable in the Offer (except as permitted by this Agreement), (ii) changes the form of consideration payable in the Offer (other than by adding consideration), (iii) changes the Minimum Condition, (iv) decreases the maximum number of shares of Company Common Stock sought pursuant to the Offer, (v) changes the material conditions to the Offer in a manner
(c) On the date of commencement of the Offer, Acquiror and Merger Sub shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO") with respect to the Offer 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 and forms of related letters of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). Acquiror shall deliver copies of the proposed forms of the Offer Documents to Company at least 48 hours prior to filing such documents with the SEC for review and comment by Company and its counsel. Company and its counsel shall be given not less than 48 hours to review any amendments and supplements to the Offer Documents prior to their filing with the SEC or dissemination to Company's stockholders. Acquiror shall provide Company and its counsel in writing any comments that Merger Sub, shall not contain any untrue statement of a material fact Acquiror or omit to state any material fact required to be stated therein their counsel may receive from the SEC 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 or warranty is made by Parent or Sub its staff with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsDocuments promptly and in any event not later than 24 hours after the receipt thereof. Each of ParentCompany, Acquiror and Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect and Parent Acquiror and Merger Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the stockholders of Company's stockholders, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in ANNEX A hereto shall have occurred or be existing (unless such event shall have been waived by Acquiror Sub), Acquiror shall cause Acquiror Sub to commence, and Acquiror Sub shall commence, the provisions of this AgreementOffer at the Per Share Amount as prompt as reasonably practicable after the date hereof, as promptly as practicable but in no event later than five business fifteen (15) days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offerhereof. The initial expiration date for the Offer (the "INITIAL OFFER EXPIRATION DATE") shall be the 20th no longer than twenty (20) business day days following the commencement of the Offer. The obligation of Acquiror Sub to accept for payment, payment and pay for, any for 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 (ii) the satisfaction or waiver of the other conditions set forth in Exhibit ANNEX A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) hereto and to the terms and conditions of this Agreement. "VOTING SHARES" means the then outstanding Shares, together with all of the then issued and outstanding shares of Class A Preferred Stock, par value $.01 per share (the "Class A Preferred Stock") and all of the Shares issuable under Options (as defined in Section 2.07) that are or may become exercisable between the Tender Offer Acceptance Date (as defined below) and the Effective Time (as defined in Section 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. Acquiror Sub expressly reserves the right to modify waive any such condition (other than the terms of Minimum Condition), to increase the price per Share payable in the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject and to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend make any other term of the Offer changes in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this AgreementOffer; provided, Sub shallhowever, and Parent shall cause Sub tothat (notwithstanding Section 8.03) no change may be made which (A) decreases the price per Share payable in the Offer, accept for payment(B) reduces the maximum number of Shares to be purchased in the Offer, and pay for, all Shares validly tendered and not withdrawn pursuant (C) imposes conditions to the Offer that Sub becomes obligated in addition to accept for paymentthose set forth in ANNEX A hereto, and pay for, pursuant to (D) amends or changes the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.terms
Appears in 2 contracts
Sources: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with its terms and none of the provisions events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as promptly soon as practicable after the public announcement of the terms of this Agreement, but in no event later than five two business days after such public announcement. The Offer shall expire and terminate on the twentieth (20th) business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in order to satisfy any of the conditions set forth in Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (2) two business days after the date public announcement of the public announcement by Parent and the Company terms of this Agreement, Sub shallthe Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, and Parent the "Offer Documents"), which shall cause Sub to, commence contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer. The initial expiration date for , which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the 20th terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business day following the commencement of the Offerdays after such public announcement. The obligation of Sub Purchaser to accept for payment, and payment or pay for, for any Common Shares tendered pursuant to the Offer shall will be subject only to the satisfaction of the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without Annex I hereto. Without the prior written consent of the Company, Sub the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Exhibit AAnnex I)) and to the terms and , impose additional conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of Common Shares; provided that the Shares. Notwithstanding Purchaser expressly reserves the foregoing, Sub may, right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Sub shall, and Parent shall cause Sub to, Purchaser will accept for payment, payment and pay for, for all Common Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the Company's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer. Each of the parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be fulfilled and avoid the occurrence of any event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the The Offer Documents shall will comply as to form in all material respects with the Securities Exchange Act provisions of 1934applicable federal securities laws and, as amended (on the "Exchange Act"), date filed with the SEC and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub the Purchaser with respect to information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Parent and the Company agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Sub the Purchaser further agree agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Aei Resources Inc), Merger Agreement (Zeigler Coal Holding Co)
The Offer. (a) Subject (i) Parent shall cause Purchaser to, and Purchaser shall, amend the Pending Offer to reflect the provisions execution of this Agreement, Agreement and the terms hereof as promptly as reasonably practicable after the date of this Agreement (but in no event later than five business days after the fifteenth (15th) Business Day following the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer). The initial expiration date for on which Purchaser amends the Pending Offer shall be is referred to in this Agreement as the 20th business day following the commencement “Offer Amendment Date.” The obligations of the Offer. The obligation Purchaser (and of Sub Parent to cause Purchaser) to accept for payment, payment and to pay for, for any Shares tendered pursuant to the Offer shall will be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A Annex I (the "“Offer Conditions"”). Unless extended in accordance with Section 1.1(a)(ii), the Offer shall expire on the later of (A) one (1) Business Day after the Registration Statement is declared effective or (B) twenty (20) Business Days after the Offer Amendment Date (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with Section 1.1(a)(ii), the “Expiration Date”). Purchaser expressly reserves the right (but will not be obligated) at any of which may be waived in whole time or in part by Sub from time to time in its sole discretiondiscretion to waive any Offer Condition or modify or amend the terms of the Offer, provided except that, without the prior written consent of the Company, Sub shall Purchaser will not (A) decrease the Cash Consideration, amend the terms of the CVR or CVR Agreement, or change the form of the consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Tender Condition or the CVR Condition (as defined in Exhibit AAnnex I)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (iiD) reduce the Offer Price, (iii) amend or add to the Offer Conditionsconditions set forth on Annex I, (ivE) except as provided modify the conditions set forth on Annex I in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (AF) extend the Offer, if at the scheduled or extended expiration date Expiration Date of the Offer any of the Offer Conditions shall not be satisfied except as required or waived, until such time as such conditions are satisfied or waivedpermitted by Section 1.1(a)(ii), (BG) extend the Offer for make any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to other change in the terms and or conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant that is adverse to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to holders of Shares or (H) increase the Offer as promptly as practicable after the expiration Cash Consideration by an increment of the Offerless than $0.25.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Genzyme Corp), Agreement and Plan of Merger (Sanofi-Aventis)
The Offer. (a) Subject to As promptly as practicable after the provisions date of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and Merger Sub shall amend the Company Existing Offer to reflect the terms and conditions of this Agreement, including the purchase price of thirty seven dollars ($37.00) per share of Company Common Stock (including the associated Rights), net to the seller in cash, without interest thereon and subject to any required withholding of Taxes (such price, or any higher price offered and paid by Merger Sub shallin its sole discretion in the Offer, the “Offer Price”), and Parent shall cause Sub toto set December 19, commence 2008 (the Offer. The initial “Initial Expiration Date”), as the expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Merger Sub to accept for payment, and pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall only be subject only to 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 hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock then directly or indirectly owned by Parent, after giving effect to the consummation of the Offer, represents at least a majority of the voting power of all Fully Diluted Shares on the Share Acceptance Date (as defined herein) (the “Minimum Condition”) and to the other conditions set forth in Exhibit A Annex II (together with the "Minimum Condition, the “Offer Conditions"”). Merger Sub (or Parent on behalf of Merger Sub) (any of which may be waived in whole or in part by Sub expressly reserves the right to waive, in its sole discretion, 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 unless otherwise provided by this Agreement or previously approved by the prior written consent of the CompanyCompany in writing, Sub shall not waive (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of shares of Company Common Stock sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex II, or otherwise amends or modifies the Offer in any manner materially adverse to the holders of Company Common Stock, and (iii) the Offer may not be extended except as defined set forth in Exhibit Athis Section 1.01(a)) and . Subject to the terms and conditions of this Agreement. Sub expressly reserves , the right Offer shall expire at 5:00 p.m., New York City time, on the Initial Expiration Date (such time, or such subsequent time to modify which the expiration of the Offer is extended in accordance with the terms of this Agreement, the Offer“Expiration Date”). Unless this Agreement has been terminated in accordance with Section 8.01, except that, Merger Sub (or Parent on behalf of Merger Sub) may extend the Offer and the Expiration Date without the consent of the Company, Sub shall not Company (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer Expiration Date, any of the Offer Conditions shall not be have been satisfied or waivedwaived in writing by Merger Sub (or Parent on behalf of Merger Sub), until such time as such conditions are satisfied or waived, waived or (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof SEC applicable to the Offer or any period required by applicable law Offer. In addition, unless the Agreement has been terminated in accordance with Section 8.01, Merger Sub shall (and (CParent shall cause Merger Sub to) extend the Offer on one or more occasions for an aggregate period and the Expiration Date from time to time in increments of not more than 10 up to fifteen (15) business days beyond upon the latest expiration date that would otherwise be permitted under clause Company’s prior written request if, as of the scheduled Expiration Date, any of the Offer Conditions set forth in paragraphs (Aa), (b), (c), (d) or and (Be) of this sentence, if on such expiration date there Annex II shall not have been tendered at least 90% of the outstanding Shares. satisfied; provided, however, that in no event shall Parent and or Merger Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer or the Expiration Date beyond September 28the Outside Date. In addition, 1998. Subject to unless this Agreement has been terminated in accordance with Section 8.01, in the terms and conditions event that all of the Offer and this AgreementConditions other than the Minimum Condition shall have been satisfied as of the scheduled Expiration Date, upon the Company’s prior written request Merger Sub shall, shall (and Parent shall cause Merger Sub to) extend the Offer and the Expiration Date by up to an additional thirty (30) days, but not beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with Section 8.01, in the event that all of the Offer Conditions shall have been satisfied as of the scheduled Expiration Date and Parent or Merger Sub fail to accept for payment, payment and pay for, all Shares for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that in accordance with this Section 1.01, Merger Sub becomes obligated to accept for payment, shall (and pay for, pursuant to Parent shall cause Merger Sub to) extend the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant Expiration Date from time to which time in increments of up to fifteen (15) business days upon the Company’s written request; provided, however, that in no event shall Parent or Merger Sub be required to extend the Offer will be madeor the Expiration Date beyond the Outside Date. Merger Sub (or Parent on behalf of Merger Sub) may, together in its sole discretion, provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), if, as of the commencement of such period, there shall not have been validly tendered and the rules and regulations promulgated thereunder and not withdrawn pursuant to the Offer Documentsthat number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of stockholders of the Company, on in accordance with Section 253 of the date first published, sent or given DGCL (as defined herein). Subject to the Company's stockholdersforegoing, shall not contain any untrue statement including the requirements of a material fact or omit Rule 14d-11 under the Exchange Act, and upon the terms and subject to state any material fact required to be stated therein or necessary in order to make the statements therein, in light conditions of the circumstances under which they were madeOffer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable, all shares of Company Common Stock (including the associated Rights) (A) validly tendered and not misleading, except withdrawn pursuant to the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Company agrees that no representation or warranty is made by Parent or Sub with respect to information supplied shares of Company Common Stock held by the Company or any of its stockholders specifically 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 Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code (as defined herein), or any provision of state, local or foreign Laws relating to Taxes. 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 of Company Common Stock in respect of which such deduction and withholding were made by Merger Sub.
(b) As promptly as reasonably practicable after the date of this Agreement, Parent and Merger Sub shall (i) amend the 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”) that was originally filed on September 12, 2008 with the Securities and Exchange Commission (the “SEC”) to reflect the terms and conditions of this Agreement, and file such amendment (the “Schedule TO Amendment”) with the SEC, which shall contain an amended and restated offer to purchase (or supplement to the offer to purchase to the extent permitted by Law) reflecting the terms and conditions of this Agreement, and a revised form of the letter of transmittal and summary advertisement and other ancillary Offer documents and instruments, if any, in respect of the Offer (together with the Schedule TO (including the Schedule TO Amendment), collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable Laws or reasonably requested by Parent or Merger Sub for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agree agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Merger Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO, as so corrected or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected or supplemented, to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case as as, and to the extent required by by, applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaws. Parent and Merger Sub agree to shall promptly provide the Company and its counsel with any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive after the date hereof from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsthose comments or other communications.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, purchase any shares of Company Common Stock (and pay for, any Shares the associated Rights) that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date Merger Agreement provides for the Offer shall be the 20th business day following the commencement of the OfferOffer not later than the fifth business day from the public announcement of the execution of the Merger Agreement. The obligation obligations of Sub the Offeror to accept for payment, payment and to pay for, for any Shares validly tendered pursuant on or prior to the expiration of the Offer shall be and not withdrawn are subject only to the Minimum Condition and the other conditions set forth in Exhibit A (Section 14--"Certain Conditions to the Offeror's Obligations"Offer Conditions") (any of which may be waived in whole . The Merger Agreement provides that the Offeror cannot amend or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to or decrease the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce Offer Price or the number of Shares subject to the Offersought, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in to be paid pursuant to the Offer, impose conditions to the Offer or (vi) in addition to those set forth in Section 14--"Certain Conditions to the Offeror's Obligations," amend any other term or condition of the Offer in any manner adverse to the holders of Shares or extend the Sharesexpiration date of the Offer without the prior written consent of the Company. Notwithstanding the foregoing, Sub the Offeror shall, and Parent agrees to cause the Offeror 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 Offer have not been satisfied or waived at such date. In addition, following such first extension of the Offer as provided in the preceding sentence, (i) the Offeror shall, and Parent agrees to cause the Offeror to, extend the Offer, at any time prior to the termination of the Merger Agreement, for one or more periods of not more than ten (10) business days, if at the expiration date of the Offer, as extended, all conditions to the Offer 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, the Offeror may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate a period of not more than 10 ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered the immediately preceding sentence unless at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub Shares shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly have been tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant Offer. Company Actions. Pursuant to the Offer Merger Agreement, the Company has agreed that, as promptly as practicable after following the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall it will file with the SEC Commission and mail to its stockholders, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-1 (14D-9 containing the "Schedule 14D-1") with respect to recommendation of the Offer, which shall contain an offer to purchase and a related letter Board of transmittal and summary advertisement (such Schedule 14D-1 and the 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 Directors that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholdersstockholders accept the Offer and approve the Merger, shall not contain any untrue statement of a material fact or omit subject to state any material fact required to be stated therein or necessary in order to make the statements therein, in light fiduciary duties of the circumstances Company's directors under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if applicable law and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders provisions of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsMerger Agreement.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Offer to Purchase (Wolters Kluwer Us Corp), Offer to Purchase (Wolters Kluwer Us Corp)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date hereof, but not later than the fifth (5th) Business Day after the date hereof, Buyer and Merger Sub shall amend the Offer to (i) increase the purchase price to the Offer Price, (ii) modify the conditions of the public announcement by Parent Offer to be the conditions set forth in Annex A hereto (the “Offer Conditions”) and no others and (iii) to make such other amendments as are necessary or appropriate to conform the Company Offer to the requirements of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for of the Offer shall be the 20th business tenth (10th) day, counting only those days that are not a Saturday, Sunday or a day following on which banks are authorized by law to close in New York, New York (each a “Business Day”), from the commencement of date the OfferOffer is amended in accordance with the preceding sentence. The obligation of Merger Sub to accept for payment, and pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") . Without the consent of the Company (any of which consent may be waived in whole granted or in part withheld by Sub the Company in its sole discretion), provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) Buyer and to the terms and conditions of this Agreement. Merger Sub expressly reserves reserve the right to modify the terms of the Offer, except thatexcept, that without the consent of the Company, Buyer and Merger Sub shall not (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, ; (ii) reduce the Offer Price, ; (iii) waive the Minimum Condition (as defined in Annex A hereto); (iv) amend or add to the Offer Conditions, ; (ivv) except as provided in the next first proviso to this sentence, extend the Offer, ; (vvi) change the form of or reduce the consideration payable in the Offer Offer; or (vivii) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding Company’s shareholders; provided, however, that, notwithstanding the foregoing, Buyer and Merger Sub may, without the consent of the Company, (A) shall extend the OfferOffer for no longer than five (5) Business Days at any one time, if at the scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, ; (B) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"” ) or the staff thereof applicable to the Offer Offer; or any period required by applicable law and (C) may, if the shares of Company Common Stock validly tendered and not withdrawn at the expiration of the Offer do not represent at least eighty percent (80%) of the total number of shares of Company Common Stock then outstanding, extend the Offer on for one or more occasions for subsequent offering periods of up to an additional twenty (20) Business Days in the aggregate period pursuant to Rule 14d-11 of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under Securities Exchange Act of 1934 (such act, as amended and the rules and regulations promulgated thereunder, the “Exchange Act”); provided, further, however, that, in the case of clause (AC) or (B) above, Merger Sub shall immediately accept for payment and promptly pay for all shares of this sentenceCompany Common Stock validly tendered, if on such expiration date there shall and not have been tendered at least 90% properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the outstanding SharesExchange Act. Parent Notwithstanding anything contained in this Agreement to the contrary, in no event shall Buyer and Merger Sub agree that if all of be required to extend the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend beyond the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998Outside Date. Subject to the terms and conditions of this Agreement and the Offer and this AgreementConditions, Merger Sub shall, and Parent Buyer shall cause Sub it to, as soon as possible after the expiration of the Offer, accept for payment, and pay forfor (after giving effect to any required withholding Tax), all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept and not withdrawn (the date of acceptance for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer“Acceptance Date”).
(b) On the date of commencement of the Offer, Parent and Sub The Offer shall file with the SEC be made pursuant to a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect supplement to the Offer, which shall contain an Merger Sub’s offer to purchase purchase, dated June 4, 2004, and contained in the Schedule TO, and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”) containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. As promptly as practicable after the date of this Agreement, but not later than the fifth (5th) Business Day after the date of this Agreement, Buyer and Merger Sub shall file the Offer Documents with the SEC and mail the Offer Documents to the shareholders of the Company (the “Company Shareholders”). Parent Buyer and Merger Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholdersCompany 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 or warranty covenant is made by Parent Buyer or Merger Sub with respect to information supplied by the Company or any of its stockholders Company Shareholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentBuyer, Merger Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent Buyer and Merger Sub further agree to take all steps reasonably necessary to cause the Schedule 14D-1 Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersCompany Shareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon (1) the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of Company Shareholders and (2) any correspondence with the CompanySEC (including comment response letters) concerning the Offer or the Offer Documents. Parent Buyer and Merger Sub agree to provide the Company and its counsel with any comments ParentBuyer, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent Buyer shall provide or shall cause Merger Sub to be provided to Sub deposit with The Bank of New York on a timely basis the funds necessary to accept for payment, and pay for, any Shares shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the provisions of this AgreementOffer pursuant to Article 11 hereof, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent Merger Subsidiary shall cause Sub to, commence (within the meaning of Rule 14d-2 under the 1▇▇▇ ▇▇▇) the Offer. The initial expiration date for Offer and the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub Merger Subsidiary to accept for payment, payment and to pay for, for any Tender Shares tendered pursuant to the Offer shall be subject only to the conditions set forth condition that there shall be validly tendered in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify accordance with the terms of the Offer, except prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, Tender Shares that, without together with the consent Tender Shares then directly or indirectly owned by Parent and/or Merger Subsidiary, represent a majority of the Company, Sub shall not Voting Shares (the “Minimum Condition”) and to the other conditions set forth in Annex I hereto. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing (i) reduce the number of Shares subject to the OfferMinimum Condition may not be waived, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) no change may be made that changes the form of consideration payable to be paid, decreases the Offer Price or the number of Tender Shares sought in the Offer or (vi) amend imposes conditions to the Offer in addition to those set forth in Annex I or amends any other term terms of the Offer in any manner adverse to the holders of Tender Shares and (iii) the SharesOffer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (determined using Rule 14d-1(g)(3) of the 1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Notwithstanding the foregoing, Sub may, without Merger Subsidiary shall extend the consent Offer (1) from time to time for successive periods of no more than 10 Business Days each (or such longer period as may be consented to by the Company, (Asuch consent not to be unreasonably withheld) extend the Offerif, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, and (B2) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend Applicable Law. Following expiration of the Offer on Offer, Merger Subsidiary may, in its sole discretion, provide one or more occasions for an aggregate period of not more than 10 business days beyond subsequent offering periods (together, the latest expiration date that would otherwise be permitted under clause (A“Subsequent Offering Period”) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% in accordance with Rule 14d-11 of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 19981934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer and this AgreementOffer, Sub Merger Subsidiary shall, and Parent shall cause Sub it to, accept for payment, payment and pay for, promptly after the expiration of the Offer, all Tender Shares (x) validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to (y) validly tendered in the Offer as promptly as practicable after the expiration of the OfferSubsequent Offering Period.
(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 a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase Purchase and a related form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"). Parent ”) and Sub agree that (ii) cause the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 disseminated to holders of Tender Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws 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 or warranty is made reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically Merger Subsidiary for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agree agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Tender Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or Offer Documents promptly after the receipt of such commentsthose comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
The Offer. (a) Subject to the provisions conditions of this AgreementAgreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as practicable reasonably practicable, but in no event later than five six business days after the date of the public announcement by Parent and the Company of this Agreement, Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date for of the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) amend change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the Offer Conditionsconditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in the next sentencethis Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of the SharesCompany Common Stock. Notwithstanding the foregoing, Merger Sub maymay (but shall not be obligated to), without the consent of the Company, (A) extend the OfferOffer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not be satisfied or waivedsatisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 ten business days beyond if the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have Minimum Tender Condition has been tendered at least satisfied but fewer than 90% of the outstanding Sharesshares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all such conditions are reasonably capable of being satisfied, then Merger Sub shall extend the Offer from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond September 28the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, 1998with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Subject Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, payment and pay for, purchase all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated is permitted to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offerfor under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree shall provide to provide the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Pharmaceutical Inc/De), Merger Agreement (Matrix Pharmaceutical Inc/De)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the provisions events set forth in Annex I hereto shall have occurred and be continuing, Purchaser shall commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) the Offer as promptly as practicable but (and in no any event not later than five ten (10) business days after days) following the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offerhereof. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation of Sub Purchaser to accept for payment, payment and to pay for, for any Shares validly tendered pursuant 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 (the "MINIMUM CONDITION"); and (ii) the other conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent Annex I hereto. For purposes of the Companyforegoing, Sub "FULLY DILUTED BASIS" shall not waive the Minimum Condition (as defined in Exhibit A)) and refer to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject 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 Yahoo! or Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") that contains the terms set forth in this Agreement, (ii) reduce the Minimum Condition and the other conditions set forth in Annex I hereto. Purchaser shall not, and Yahoo! shall cause Purchaser not to, decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer (the "INITIAL EXPIRATION DATE") except as set forth below, or (vi) amend any other term condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of Launch (such consent to be authorized by Launch's Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Sub Purchaser may, without the consent of the CompanyLaunch, (Ai) extend the OfferOffer beyond the Initial Expiration Date for the shortest time periods which it reasonably believes are necessary, if in one or more such periods, but in no event more than an additional fifteen (15) business days, if, at the scheduled or extended expiration date of the Offer Offer, Yahoo! and Purchaser shall not be in material breach of this Agreement and any of the Offer Conditions conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waivedwaived and such condition is reasonably capable of being satisfied, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.the
Appears in 2 contracts
Sources: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media Inc)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there Agreement shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenterminated in accordance with Article VIII, provided that all such conditions are reasonably capable of being satisfied, Merger Sub shall extend commence (within the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions meaning of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and ) the Offer Documentsas promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement on the date first published, sent hereof or given the following day of Merger Sub's intention to commence the Offer. The obligation of Merger Sub to accept for payment and pay for shares of Company Common Stock tendered pursuant to the Company's stockholders, Offer shall not contain any untrue statement only be subject to (i) the condition (the "Minimum Condition") that at least the number of a material fact or omit to state any material fact required to be stated therein or necessary in order to make shares of Company Common Stock (together with the statements therein, in light shares of the circumstances under which they were madeCompany Common Stock, not misleadingif any, except that no representation or warranty is made then owned by Parent or Sub with respect Merger Sub) constituting a majority of the then outstanding shares of Company Common Stock on a fully diluted basis shall have been validly tendered and not withdrawn prior to information supplied by the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in Exhibit A. As used herein, "fully diluted basis" means issued and outstanding shares of Company Common Stock and shares of Company Common Stock subject to issuance under vested Options (as defined in Section 2.06(c)) and shares of Company Common Stock subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or securities convertible or exchangeable for such capital stock, but shall not include unvested Options. Merger Sub expressly reserves the right, subject to compliance with the Exchange Act, to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of its stockholders specifically for inclusion or incorporation by reference the Offer; provided, however, that unless Parent and Merger Sub shall have obtained the prior written approval of the Company, no change may be made in the Offer Documents. Each which (i) decreases the Per Share Amount, (ii) changes the form of Parent, Sub and the Company agree promptly consideration to correct any information provided by it for use be paid in the Offer Documents if and to Offer, (iii) reduces the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected maximum number of shares of Company Common Stock to be filed with purchased in the SEC and Offer, (iv) modifies the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect conditions to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide set forth in Exhibit A or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant imposes conditions to the Offer in addition to those set forth in Exhibit A, (v) modifies or waives the Minimum Condition or (vi) except as provided in Section 1.01(b), extends the Offer.. 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
Appears in 2 contracts
Sources: Merger Agreement (Superior Telecom Inc), Merger Agreement (Superior Telecom Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreementpracticable, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Merger Sub to, and of Parent to cause Merger Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent A. The initial expiration date of the Company, Sub Offer shall not waive be the Minimum Condition 20th Business Day following the commencement of the Offer (as defined in Exhibit Adetermined using Exchange Act Rule 14d-1(g)(3)) and to the terms and conditions of this Agreement). Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or waive the Minimum Tender Condition (as defined in Exhibit A), add to the Offer Conditionsconditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of the SharesCompany Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (Ai) extend the OfferOffer in increments of not more than five (5) Business Days each, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Merger Sub’s obligation to purchase Shares are not be satisfied or waivedsatisfied, until such time as such conditions are satisfied or waived, waived or (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentenceOffer. In addition, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any otherwise scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being any condition to the Offer is not satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time until such conditions are satisfied at the request of the Company for not less than five (5) Business Days. In addition, Merger Sub shall, if requested by either the Company or waivedthe Parent, make available a "subsequent offering period", in accordance with Exchange Act Rule 14d-11, of not less than ten (10) Business Days; provided that Merger Sub shall not be required to extend make available such a subsequent offering period in the Offer beyond September 28event that, 1998prior to the commencement of such subsequent offering period, Parent and Merger Sub, directly or indirectly own more than 80% of the Fully Diluted Shares. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer. The time at which Merger Sub initially accepts Shares for payment pursuant to the Offer shall be referred to herein as the ("Acceptance Time").
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC and deliver to the Company and its counsel a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.TO
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds and securities necessary to accept for payment, and pay for, purchase any Shares that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
(d) The Company hereby grants to Parent and Merger Sub an irrevocable option (the "Top-Up Option") to purchase at a price per share equal to the Cash Value of the Offer Price up to that number of newly issued shares of the Company Common Stock (the "Top-Up Shares") equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock, directly or indirectly, owned by Parent and Merger Sub at the time of exercise of the Top-Up Option shall constitute one share more than ninety percent (90%) of the Fully Diluted Shares immediately after the issuance of the Top-Up Shares. The Top-Up Option shall be exercisable only once, at such time as Parent and Merger Sub, directly or indirectly, own at least 80% of the Fully Diluted Shares and prior to the fifth Business Day after the expiration date of the Offer or the expiration date of any subsequent offering period. Such Top-Up Option shall not be exercisable to the extent the number of shares of Company Common Stock subject thereto (taken together with the number of Fully Diluted Shares outstanding at such time) exceeds the number of authorized shares of Company Common Stock available for issuances. The obligation of the Company to deliver the Top-Up Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable Law or rule of the NASDAQ Global Market and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act. In the event Parent and Merger Sub wish to exercise the Top-Up Option, Merger Sub shall give the Company one (1) Business Day prior written notice specifying the number of shares of the
Appears in 2 contracts
Sources: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Etrials Worldwide Inc.)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in paragraph (c) of Annex A hereto shall have occurred and be existing, and subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date hereof, Parent shall cause Sub to, and Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")) a tender offer (the "Offer") to purchase all of the public announcement by Parent issued and outstanding Shares, at a price per Share of $30.00 (such amount, or any greater amount per Share paid pursuant to the Company Offer, the "Per Share Price") net to each seller in cash. Subject to the provisions of this Agreement, Sub shall, and Parent shall cause Sub to, commence accept for payment and pay the Offer. The initial expiration date Per Share Price for any Shares validly tendered and not withdrawn pursuant to the Offer shall be as soon as practicable after the 20th business day following the commencement expiration of the Offer. .
(b) The obligation of Parent and Sub to consummate the Offer, and to accept for payment, payment and pay for, any for Shares tendered pursuant to the Offer Offer, shall be subject to only to the those conditions set forth in Exhibit A Annex A. Parent and Sub may waive any such condition other than (i) the Minimum Condition (defined in Annex A), provided that Parent and Sub may reduce the Minimum Condition to a majority of the outstanding Shares on a fully diluted basis, or (ii) the condition relating to the expiration of the waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"). Parent and Sub expressly reserve the right (but have no obligation) to increase the consideration per share payable in the Offer Conditions") (or amend, modify or make any changes in the terms and conditions of which may be waived in whole or in part by the Offer except that neither Parent nor Sub in its sole discretion, provided thatshall, without the prior written consent of the Company's Board of Directors, Sub shall not waive the Minimum Condition (as defined in Exhibit A)i) and impose conditions to the terms and conditions Offer in addition to those set forth in Annex A, (ii) decrease the Per Share Price, (iii) change the form of this Agreement. Sub expressly reserves the right to modify the terms of the Offerconsideration, except that, without the consent of the Company, Sub shall not (iiv) reduce the number of Shares subject sought to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided be purchased in the next sentence, extend the Offer, (v) change extend the form expiration date of consideration payable in the Offer (except as provided below in this paragraph), or (vi) amend otherwise change any other term of the Offer in any manner adverse to the holders of Shares. The Offer shall expire on the Sharestwentieth business day after its commencement, except as provided below. The parties acknowledge their intention to consummate the transactions contemplated hereby as soon as reasonably practicable. To that end (provided that the conditions set forth in paragraphs (c)(iii) through (c)(ix) and (e) of Annex A have been met), Parent and Sub shall use commercially reasonable best efforts, subject to the terms of this Agreement (including Section 6.2 and Annex A), to consummate the Offer within 30 business days following commencement of the Offer, including the obtaining of requisite financing, the receipt of the consent of the holders of its 12% Senior Notes due 2006 as contemplated by Annex A and receipt of requisite governmental approvals (including in respect of the HSR Act) as contemplated by Annex A. If the conditions set forth in paragraphs (c)(iii) through (c)(ix) and (e) of Annex A have been met but the conditions set forth in either or both of paragraphs (b) or (d) of Annex A are not met within 30 business days following commencement of the Offer, Parent and Sub shall use commercially reasonable best efforts, subject to the terms of this Agreement (including Section 6.2 and Annex A), to consummate the Offer on or prior to the sixtieth calendar day following commencement of the Offer. Notwithstanding the foregoing, Sub maythe parties acknowledge Parent's and Sub's right, without the consent of the Company, to extend the Offer on one or more occasions as follows: (Ai) extend the Offer, if at the then-scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Sub's obligations to accept for payment and pay for Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and Offer, (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than 5 business days if the Minimum Condition has been satisfied but less than 80% of the outstanding Shares (on a fully diluted basis) have been validly tendered and not withdrawn, (iv) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 business days beyond the initial expiration date or the latest expiration date that would otherwise be permitted under clause (Ai), (ii) or (Biii) of this sentence, and (v) extend the Offer on one or more occasions for an aggregate period of not more than 60 calendar days after the date of the commencement of the Offer in order for Parent to obtain financing on terms acceptable to it; provided, however, that without the written consent of the Company, Parent and Sub may not extend the Offer (A) for any period that would end more than 60 calendar days after the date of the commencement of the Offer, unless on such sixtieth day any of the conditions on Annex A are not satisfied, or (B) for any period that would end more than 90 calendar days after the date of the commencement of the Offer; provided further that if on such the initial expiration date there of the Offer, or any extension thereof, the conditions set forth in paragraphs (c)(iii) through (c)(ix) and (e) of Annex A have been satisfied or waived but any of the conditions set forth in paragraphs (b), (c)(i), (c)(ii) or (d) in Annex A shall not have been tendered at least 90% of the outstanding Shares. satisfied or waived, Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to one or more times (for such periods as Parent and Sub shall determine in their sole discretion) until 60 calendar days after the terms and conditions date of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration commencement of the Offer; provided, further, that Parent and Sub may extend the Offer beyond such 90 calendar day period if the conditions set forth in Annex A shall not have been satisfied as a result of a breach by the Company of its obligations under this Agreement.
(bc) On the date of commencement of the Offer, Parent and Sub shall file with the SEC Securities and Exchange Commission (the "SEC") with respect to the Offer a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that take such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps as are reasonably necessary to cause the Schedule 14D-1 as so corrected Offer to be filed with the SEC and the other Offer Documents as so corrected Purchase (defined below) to be disseminated to the Company's stockholders, in each case holders of Shares as and to the extent required by applicable federal securities laws. The Schedule 14D-1 shall contain an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and summary advertisement (the Offer to Purchase and such other documents, together with any amendments or supplements thereto, collectively, the "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-1 and the Offer Documents prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company's shareholders. Parent and Sub agree to shall provide the Company and its counsel with a copy of any written comments Parent, that Parent or Sub or their counsel may receive receives from the SEC or its staff with 8 respect to the Schedule 14D-1 and the Offer Documents promptly after the receipt of any such comments.
(cd) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) The parties understand and agree that the Per Share Price has been calculated based upon the accuracy of the representation and warranty set forth in Section 3.2(a) and that, in the event the number of outstanding Shares or Shares issuable upon the exercise of, or subject to, options or other agreements exceeds the amounts specifically set forth in Section 3.2(a) by more than 10,000 Shares (including without limitation as a result of any stock split, reverse stock split, stock dividend, including any dividend or distribution of securities convertible into Shares, recapitalization, or other like change occurring after the date of this Agreement), the Per Share Price shall be appropriately adjusted downward. The provisions of this paragraph (e) shall not, however, affect the representation set forth in Section 3.2(a).
Appears in 2 contracts
Sources: Merger Agreement (Delchamps Inc), Merger Agreement (Jitney Jungle Stores Inc)
The Offer. (a) Subject to the provisions of this Agreement, as __As promptly as practicable but in no event later than five business days after the date of the public announcement (on the date hereof or the following day) by Parent Purchaser and the Company of this Agreement, Merger Sub shall, and Parent Purchaser shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")). The obligation of Merger Sub to, and of Purchaser to cause Merger Sub to, commence the Offer. The initial expiration date for , conduct and consummate the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in on Exhibit A hereto (the "Offer Conditions") (any of which (other than the Minimum Condition and the Antitrust Condition (as such terms are defined in Exhibit A)) may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub shall not (i) reduce i)__reduce the number of Shares subject to the Offer, (ii) reduce ii)__reduce the Offer Price, (iii) amend iii)__add to or add to modify the Offer Conditions, (iv) except iv)__except as provided in the next following sentence, extend the Offer, (v) change v)__change the form of consideration payable in the Offer or (vi) amend vi)__amend or alter any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (B) extend the Offer, if at the scheduled or extended expiration date of the Offer, any of the Offer Conditions shall not be satisfied or any period required by applicable law waived, until such time as such conditions are satisfied or waived and (C) extend the Offer on one or more occasions occasion for an aggregate a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent Notwithstanding the foregoing, Merger Sub may not, without the Company's prior written consent, extend the Offer pursuant to clause (B) of the prior sentence if the failure to satisfy any of the Offer Conditions was directly or indirectly caused by an act or omission of Purchaser or Merger Sub that constitutes a breach of this Agreement. Purchaser and Merger Sub agree that if all of any Offer Condition (other than the Minimum Condition and the Offer Conditions are Condition set forth in paragraph (e) of Exhibit A) is not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all such conditions are reasonably capable of being satisfied, then Merger Sub shall extend the Offer from time to time until such conditions are all the Offer Conditions have been satisfied or waived, provided that (i)__any such unsatisfied condition is reasonably capable of being satisfied, (ii)__any Takeover Proposal theretofore received by the Company has been rejected by the Company (or, if such Takeover Proposal has not been rejected by the Company as of such scheduled expiration date, such Takeover Proposal was received by the Company less than ten days prior to such scheduled expiration date), as confirmed in writing by the Company to Purchaser setting forth the date any such Takeover Proposal was received, and (iii) Merger Sub shall not be required to extend the Offer beyond September 28, 1998to a date that is later than the Outside Date (as defined in 9.1(c)). Subject to the terms and conditions of the Offer and this AgreementSection 1.1(a), Merger Sub shall, and Parent Purchaser shall cause Merger Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent Purchaser and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and transmittal, a summary advertisement and such other documents as are customarily filed with a Schedule 14D-1 (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, being hereinafter collectively referred to as the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentPurchaser, Merger Sub and the Company agree agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent Purchaser and Merger Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent Purchaser and Merger Sub agree to provide the Company and its counsel any comments ParentPurchaser, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary sufficient to accept for payment, payment and pay for, any and all Shares that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Lyondell Petrochemical Co), Merger Agreement (Lyondell Petrochemical Co)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any other conditions to the Offer Conditionsother than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend amend, waive or add any other term of the Offer in any manner adverse to the Company or the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer on for any reason for 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 (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent So long as this Agreement is in effect and Sub agree that if all of the Offer Conditions are have not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are been satisfied or waived, provided that Sub shall, and Parent shall not be required to extend cause Sub to, cause the Offer beyond September 28, 1998not to expire. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated is permitted to accept for paymentpayment under applicable law, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-114D- 1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Prior to the expiration of the Offer, Parent shall provide or cause to be provided to Sub on a timely basis the all funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated is permitted to accept for payment, payment under applicable law and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Aon Corp), Merger Agreement (Alexander & Alexander Services Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article VII, then (i) not later than the provisions first Business Day after execution of this Agreement, Parent and the Company shall issue separate public announcements regarding the execution of this Agreement and (ii) Merger Sub shall, as promptly soon as practicable practicable, but in no event later than five business days Business Days from and after the date of such announcement, including the public date of announcement by Parent and as the Company of this Agreement, Sub shall, and Parent shall cause Sub tofirst Business Day in accordance with Rule 14d-2 under the Exchange Act, commence (within the Offermeaning of Rule 14d-2(a) of the Exchange Act) the Offer to purchase all of the outstanding shares of Company Common Stock at the Price Per Share. The initial expiration date for of the Offer shall be the 20th business day following 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 Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the OfferCompany and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment, payment and pay for, any Shares for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) there being at least that number of shares of Company Common Stock representing a majority of the total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "MINIMUM SHARES") validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION") and (ii) the satisfaction of the other conditions set forth in Exhibit Annex A (the "Offer Conditions") (hereto, any of which conditions may be waived in whole or in part by Merger Sub in its sole discretion; PROVIDED, provided thatHOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company, . The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and pursuant to the terms and conditions of this Agreement. Sub expressly reserves Offer.
(b) Without the right to modify the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not will (i) reduce decrease the number of Shares subject to Price Per Share payable in the Offer, (ii) reduce decrease the Offer Price, (iii) amend or add number of shares of Company Common Stock sought pursuant to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in ANNEX A hereto or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (viv) amend otherwise amend, add or waive any other term or condition of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoingshares of Company Common Stock; PROVIDED, Sub mayHOWEVER, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such any conditions are reasonably capable of being satisfied, Sub shall extend to the Offer from time to time until such conditions are have not been satisfied or waived, provided Merger Sub may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 5 additional Business Days (but in no event shall Merger
(1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that Sub have been validly tendered and not withdrawn represent more than 50% but less than 90% of the total issued and outstanding shares of Company Common Stock on a fully diluted basis; PROVIDED, HOWEVER, that in no event shall not be required the extension permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Notwithstanding anything to the contrary in this Agreement, Parent may extend the Offer beyond September 28during (but only to the end of) the period in which the Company is attempting to cure a breach pursuant to Section 7.1(h). Parent and Merger Sub will, 1998. Subject subject to the terms and conditions of the Offer and this Agreement, use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in ANNEX A hereto, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, payment and pay for, in accordance with the terms of the Offer, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as permitted under applicable law, recognizing that the parties wish to close as expeditiously as possible following expiration or termination of the waiting period under the HSR Act. Parent shall provide, or cause to be provided, to Merger Sub, on a timely basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Rental Service Corp), Merger Agreement (Rental Service Corp)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 9.1 and subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any conditions to the Offer Conditionsin addition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent not prohibited by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend make any other term change or modification in any of the terms of the Offer in any manner that is adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer on one or more occasions occasions, extend the Offer for a period of up to an aggregate period of 15 business days if, on a scheduled expiration date on which the Offer Conditions shall have been satisfied or waived, the number of shares of Company Class A Common Stock (together with any shares of Company Class A Common Stock held by Parent or any of its Subsidiaries) that have been validly tendered and not withdrawn represent more than 10 business days beyond 70% of the latest expiration date that would otherwise be permitted under clause (A) or (B) then issued and outstanding shares of this sentenceCompany Class A Common Stock, if on such expiration date there shall not have been tendered at least but less than 90% of the then issued and outstanding Sharesshares of Company Class A Common Stock, and the number of shares of Company Class B Common Stock (together with any shares of Company Class B Common Stock held by Parent or any of its Subsidiaries) that have been validly tendered and not withdrawn represent more than 70% of the then issued and outstanding shares of Company Class B Common Stock, but less than 90% of the then issued and outstanding shares of Company Class B Common Stock. Parent and Sub agree that if all of Sub will not terminate the Offer Conditions are not satisfied on between scheduled expiration dates (except in the event that this Agreement is terminated pursuant to Section 9.1) and that, in the event that Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due to the failure of one or more of the Offer 7 thenConditions, provided that all such conditions are reasonably capable of being satisfied, Sub unless this Agreement shall extend the Offer from time have been terminated pursuant to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this AgreementSection 9.1, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.and
Appears in 2 contracts
Sources: Merger Agreement (Monsanto Co), Merger Agreement (Dekalb Genetics Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement, --------- as promptly as practicable practicable, but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Merger Sub to, and of Parent to cause --- Merger Sub to to, accept for payment, and payment or pay for, for any Company Common Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A --------- hereto. The initial expiration date of the Offer shall be January 3, 2001 (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Offer ConditionsExchange Act") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub expressly reserves the right to waive any condition to the Offer or to modify the terms of the Offer, except thatin each case in its sole discretion; provided, however, that without -------- ------- the consent of the Company, Merger Sub shall not (i) reduce the number of Company Common Shares subject to the Offer, (ii) reduce the price per Company Common Share to be paid pursuant to the Offer Priceor change the form or time of delivery of consideration, (iii) amend or waive the Minimum Tender Condition (as defined in Exhibit A hereto) or add to the Offer Conditionsconditions set forth in Exhibit A --------- --------- hereto, (iv) except as provided below in the next sentencethis Section 1.1(a), extend the Offer, or (v) change otherwise amend the form of consideration payable in the Offer or (vi) amend any other term terms of the Offer in any manner adverse to the holders of the Company Common Shares. Notwithstanding the foregoing, Merger Sub may, at any time and from time to time, and, in each case, subject to Section 8.1 hereof, take one or more of the following actions without the consent of the Company, : (A) extend the OfferOffer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions to the Offer to be satisfied, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Merger Sub's obligation to accept Company Common Shares for payment is not be satisfied or waived, until such time as all such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof that is applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (A) or (B) of this sentence, if on if, as of such expiration date there shall date, all of the conditions to Merger Sub's obligation to accept Company Common Shares for payment (including the Minimum Tender Condition) are satisfied or waived, but the number of Company Common Shares validly tendered and not have been tendered at least withdrawn pursuant to the Offer equals less than 90% of the outstanding SharesCompany Common Shares (determined on a fully diluted basis for all outstanding stock options, convertible securities and any other rights to acquire Company Common Stock on the date of purchase). Without limiting the rights of Merger Sub to extend the Offer pursuant to the immediately preceding sentence, Parent and Merger Sub agree that if (I) (x) all of the conditions to the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all (y) such conditions are reasonably capable of being satisfiedsatisfied within 30 days after the initial expiration date of the Offer and (z) the Company is in compliance with all of its covenants in this Agreement, or (II) any rule, regulation, interpretation or position of the SEC or the staff thereof that is applicable to the Offer requires an extension of the Offer, then Merger Sub shall extend the Offer from for one or more periods of time that Merger Sub reasonably believes are necessary to time cause the conditions of the Offer to be satisfied, until all such conditions are satisfied or waived; provided, provided however, that Merger Sub shall not be required to extend the Offer -------- ------- pursuant to this sentence beyond September 28the 30th day after the initial expiration date of the Offer, 1998unless otherwise required pursuant to (II) above. Subject to Section 8.1 hereof, Merger Sub may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d- 11 under the Exchange Act, following its acceptance of Company Common Shares for payment pursuant to the Offer. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment, and pay for, all Company Common Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, So long as promptly as practicable but in no event later than five business days after the date none of the public announcement by Parent and events set forth in clauses (a) through (i) of Annex I hereto (as hereinafter provided) shall have occurred or exist, the Company of this Agreement, Sub Purchaser shall, and Parent shall cause Sub the Purchaser to, commence (within the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement meaning of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (BRule 14d-2(a) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with 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 October 22, 1997, the Offer for all outstanding Securities at the Securities Offer Price applicable to such Securities, 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 (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 Securities with respect to the Offer. The obligation of Parent to accept for payment or pay for any Securities tendered pursuant to the Offer will be subject only to the satisfaction or waiver (which waiver is restricted only to the extent set forth in the next succeeding sentence) of the conditions set forth in Annex I hereto. Without the prior written consent of the Company, the Purchaser shall not decrease the price per Security or change the form of consideration payable in the Offer, decrease the number of Shares or Warrants sought to be purchased in the Offer, change the conditions set forth in Annex I, waive or reduce the Minimum Condition (as defined in Annex I) to lower than fifty percent of the fully diluted Common Shares, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of any Securities, provided, however, that if all of the conditions to the Offer are then satisfied or waived, the Parent, in order to permit the Merger to become effective without a meeting of Shareholders in accordance with Section 253 of the GCL, shall have the right (i) to extend the Offer for a period or periods aggregating up to ten business days from the then effective Expiration Date; provided, that prior to any such extensions referred to in this clause (i), Parent and the Purchaser shall deliver to the Company a written notice that all conditions set forth on Annex I hereto are permanently deemed to be satisfied except for a failure of the Minimum Condition to occur or any other such conditions the failure of which to be satisfied results from an intentional breach hereof by the Company, and (ii) thereafter to extend the rules Offer with the prior written consent of the Company; and regulations promulgated thereunder provided further that Parent may extend the Offer to the extent required by law or regulation. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver (which waiver is restricted only to the extent set forth in the immediately preceding sentence) of all the conditions of the Offer Documentsset forth in Annex I hereto as of any expiration date, Parent will accept for payment and pay for all Securities validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Subject to Section 8.01, if the conditions set forth in Annex I hereto are not satisfied or, waived by the Parent, as of the Initial Expiration Date (or any subsequently scheduled expiration date), Parent will extend the Offer from time to time for the shortest time periods which it reasonably believes are necessary until the consummation of the Offer. Each of Parent and the Purchaser shall use its reasonable best efforts to avoid the occurrence of any event specified in Annex I or to cure any such event that shall have occurred.
(b) The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersShareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub the Purchaser with respect to information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Parent and the Company agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Sub the Purchaser further agree agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersShareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to Provided that this Agreement shall not --------- have been terminated in accordance with Article VIII hereof and so long as none of the provisions of this Agreementevents set forth on Annex A hereto (the "Tender Offer Conditions") shall ------- ----------------------- have occurred and are continuing, as promptly as practicable but in no event later than five business days on the fifth Business Day after the date of the public announcement by Parent and the Company of this Agreement, Agreement Sub shall, and Parent shall cause Sub to, commence (within the Offer. The initial expiration date for meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer shall be at the 20th business day following the commencement of the OfferOffer Price. The obligation of Sub to accept for payment, payment and to pay for, for any Shares tendered pursuant to the Offer shall be subject only to the conditions Tender Offer Conditions. Subject to the proviso set forth in Exhibit A (the "immediately succeeding sentence and the obligations of Parent and Sub to extend the Offer under certain circumstances as set forth in this Section 2.1(a), the Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions") (. Parent and Sub expressly reserve the right to modify the terms of the Offer, including, without limitation, to extend the Offer beyond any of which may be waived in whole scheduled expiration date or in part by waive any Tender Offer Condition; provided, however, that neither Parent nor Sub in its sole discretion, provided that-------- ------- shall, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any additional conditions to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (viv) change the form of consideration payable in the Offer or Offer, (viv) amend make any other term change to the terms of the Offer which is adverse in any manner adverse to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the sixth sentence of this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a period up to twenty (20) Business Days, but in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Notwithstanding Assuming prior satisfaction or waiver of the foregoingTender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of up to ten (10) Business Days in the Securities and Exchange Commission (the "SEC") or the staff thereof applicable aggregate notwithstanding that all conditions to the Offer or have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any period required by applicable law and of the Tender Offer Conditions, other than (Cx) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond Minimum Condition, (y) the latest expiration date that would otherwise be permitted under condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or 8.1(d)(iv) or (Bz) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of this sentenceAnnex A, if on but only to the extent that the failure of such expiration date there shall not have been tendered at least 90% of condition is due to an event making it illegal to purchase Shares pursuant to the outstanding SharesOffer. Parent and Sub agree that if all of the Offer Conditions are not satisfied If, on any scheduled expiration date of the Offer, the Offer 7 thenwould have expired due to the failure to satisfy (w) any of the Tender Offer Conditions set forth in clause (iii)(a), provided (iii)(b) or (iii)(c) of Annex A, (x) the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or (y) the Minimum Condition, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer (A) in the case of clause (w) or (x), from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, but in no event later than the Termination Date and (B) in the case of clause (y), for one or more periods not exceeding, in the aggregate, twenty (20) Business Days, but in no event later than the Termination Date, unless Parent, in each case, reasonably believes at such time that all such conditions are reasonably Tender Offer Condition is not capable of being satisfied. In addition, notwithstanding anything in this Section 2.1(a) to the contrary, if the Company shall have affirmatively announced to the stockholders of the Company a neutral position with respect to an Acquisition Proposal, Parent shall, at the request of the Company, cause Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions expiration date of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable ten (10) Business Days after the expiration date of the Offerinitial announcement of such neutral position.
(b) On As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub shall file with the SEC Commission a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule 14D-1TO") with respect to the Offer, which . The Schedule TO shall contain ----------- (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, as well as all other information and ----------- exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement (and such Schedule 14D-1 other information and the documents included therein pursuant to which the Offer will be madeexhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Parent The Company and Sub agree that its counsel shall be --------------- given reasonable opportunity to review and comment upon the Offer Documents Schedule TO prior to its filing with the Commission. The Schedule TO shall comply as to form in all material respects with the Securities Exchange Act provisions of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documentsapplicable federal securities laws and, on the date filed with the Commission and the date first published, sent or given to the Company's stockholdersholders of the 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 order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to any information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer DocumentsSchedule TO. Each of ParentParent and Sub, Sub on the one hand, and the Company agree Company, on the other hand, agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall be, or have become become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC Commission and the other Offer Documents as so corrected to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders Each of the Company. Parent and Sub agree agrees to provide the Company and its counsel with information with respect to any oral comments Parent, and copies of any written comments Parent and Sub or their counsel may receive from the SEC Commission or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent comments and shall provide the Company and its counsel an opportunity to participate in the response of Parent or cause Sub to be provided to such comments, including by participating with Parent and Sub on a timely basis or their counsel in any discussions with the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the OfferCommission or its staff.
Appears in 1 contract
Sources: Merger Agreement (Royal Ahold)
The Offer. (a) Subject to Provided that this Agreement shall not --------- have been terminated in accordance with Article VIII hereof and so long as none of the provisions of this Agreementevents set forth on Annex A hereto (the "Tender Offer Conditions") shall ------- ----------------------- have occurred and are continuing, as promptly as practicable but in no event later than five business days on the fifth Business Day after the date of the public announcement by Parent and the Company of this Agreement, Agreement Sub shall, and Parent shall cause Sub to, commence (within the Offer. The initial expiration date for meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer shall be at the 20th business day following the commencement of the OfferOffer Price. The obligation of Sub to accept for payment, payment and to pay for, for any Shares tendered pursuant to the Offer shall be subject only to the conditions Tender Offer Conditions. Subject to the proviso set forth in Exhibit A (the "immediately succeeding sentence and the obligations of Parent and Sub to extend the Offer under certain circumstances as set forth in this Section 2.1(a), the Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions") (. Parent and Sub expressly reserve the right to modify the terms of the Offer, including, without limitation, to extend the Offer beyond any of which may be waived in whole scheduled expiration date or in part by waive any Tender Offer Condition; provided, however, that neither Parent nor Sub in its sole discretion, provided that-------- ------- shall, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any additional conditions to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (viv) change the form of consideration payable in the Offer or Offer, (viv) amend make any other term change to the terms of the Offer which is adverse in any manner adverse to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the sixth sentence of this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a period up to twenty (20) Business Days, but in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Notwithstanding Assuming prior satisfaction or waiver of the foregoingTender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of up to ten (10) Business Days in the Securities and Exchange Commission (the "SEC") or the staff thereof applicable aggregate notwithstanding that all conditions to the Offer or have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any period required by applicable law and of the Tender Offer Conditions, other than (Cx) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond Minimum Condition, (y) the latest expiration date that would otherwise be permitted under condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or 8.1(d)(iv) or (Bz) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of this sentenceAnnex A, if on but only to the extent that the failure of such expiration date there shall not have been tendered at least 90% of condition is due to an event making it illegal to purchase Shares pursuant to the outstanding SharesOffer. Parent and Sub agree that if all of the Offer Conditions are not satisfied If, on any scheduled expiration date of the Offer, the Offer 7 thenwould have expired due to the failure to satisfy (w) any of the Tender Offer Conditions set forth in clause (iii)(a), provided (iii)(b) or (iii) (c) of Annex A, (x) the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or (y) the Minimum Condition, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer (A) in the case of clause (w) or (x), from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, but in no event later than the Termination Date and (B) in the case of clause (y), for one or more periods not exceeding, in the aggregate, twenty (20) Business Days, but in no event later than the Termination Date, unless Parent, in each case, reasonably believes at such time that all such conditions are reasonably Tender Offer Condition is not capable of being satisfied. In addition, notwithstanding anything in this Section 2.1(a) to the contrary, if the Company shall have affirmatively announced to the stockholders of the Company a neutral position with respect to an Acquisition Proposal, Parent shall, at the request of the Company, cause Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions expiration date of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable ten (10) Business Days after the expiration date of the Offerinitial announcement of such neutral position.
(b) On As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub shall file with the SEC Commission a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule 14D-1TO") with respect to the Offer, which . The Schedule TO shall contain ----------- (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, as well as all other information and ----------- exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement (and such Schedule 14D-1 other information and the documents included therein pursuant to which the Offer will be madeexhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Parent The Company and Sub agree that its counsel shall be --------------- given reasonable opportunity to review and comment upon the Offer Documents Schedule TO prior to its filing with the Commission. The Schedule TO shall comply as to form in all material respects with the Securities Exchange Act provisions of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documentsapplicable federal securities laws and, on the date filed with the Commission and the date first published, sent or given to the Company's stockholdersholders of the 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 order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to any information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer DocumentsSchedule TO. Each of ParentParent and Sub, Sub on the one hand, and the Company agree Company, on the other hand, agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall be, or have become become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC Commission and the other Offer Documents as so corrected to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders Each of the Company. Parent and Sub agree agrees to provide the Company and its counsel with information with respect to any oral comments Parent, and copies of any written comments Parent and Sub or their counsel may receive from the SEC Commission or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent comments and shall provide the Company and its counsel an opportunity to participate in the response of Parent or cause Sub to be provided to such comments, including by participating with Parent and Sub on a timely basis or their counsel in any discussions with the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the OfferCommission or its staff.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement, Devon shall mail to holders of And▇▇▇▇▇ ▇▇ares and And▇▇▇▇▇ ▇▇tions as soon as practicable but in any event not later than 11:59 p.m. (Calgary time) on September 12, 2001, an offer to purchase all of the outstanding And▇▇▇▇▇ ▇▇ares (including the associated Rights) including any And▇▇▇▇▇ ▇▇ares which may become outstanding pursuant to the exercise of outstanding And▇▇▇▇▇ ▇▇tions, for a price of $40.00 in cash for each And▇▇▇▇▇ ▇▇are which offer shall be made in accordance with this Agreement, the Act and Securities Laws and be subject to the conditions set forth in Schedule A hereto (the "Offer", which term shall include any amendments to, or extensions of, such Offer, including, without limitation, increasing the consideration, removing or waiving any condition or extending the date by which And▇▇▇▇▇ ▇▇ares may be tendered). Sub expressly reserves Devon and And▇▇▇▇▇ ▇▇all cooperate in making on a timely basis any filings with respect to the right Offer, including amendments thereafter on a timely basis as required by Securities Laws. The Offer shall be prepared in both the English and French languages and in accordance with this Agreement, the Act and Securities Laws. Devon shall provide And▇▇▇▇▇ ▇▇th a draft copy of the Offer Documents prior to modify mailing for its review and comment.
(b) Devon may make the terms Offer itself or through any direct or indirect subsidiary. In the event that a Devon subsidiary makes or participates in the making of the Offer, except thatthe term "Devon" as used herein shall include such subsidiary, without other than in Article 5 where the consent of the Company, Sub term "Devon" shall not include such subsidiary, but Devon shall continue to be liable to And▇▇▇▇▇, ▇s principal obligor, for such subsidiary's obligations hereunder and for any default by such subsidiary in the performance of its obligations hereunder.
(ic) reduce The Offer shall expire at the number of Shares subject to the OfferInitial Expiry Time, (ii) reduce except that the Offer Pricemay be extended, (iii) amend or add to at the sole discretion of Devon, if the conditions thereto set forth in Schedule A hereto are not satisfied on the date and time at which the Offer Conditionsexpires and if Devon determines, (iv) except as provided in acting reasonably, that there is a reasonable prospect that the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term conditions of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall may not be satisfied or waivedprior to the Expiry Time. In addition, until in the event that any appropriate regulatory approval is not obtained prior to the time the Offer is scheduled to terminate, unless such time as such conditions are satisfied or waivedapproval has been denied, (B) Devon agrees that it will extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate a period of not more less than 10 business days beyond past the latest expiration date that would otherwise be permitted under clause (A) or (B) Initial Expiry Time pending receipt of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenapproval, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub Devon shall not be required to extend the Offer beyond September 28past December 31, 19982001 or such later date as may be mutually agreed in writing by And▇▇▇▇▇ ▇▇d Devon. Subject to the satisfaction or waiver of the conditions set forth in Schedule A hereto, Devon shall within three days accept for payment and pay for all And▇▇▇▇▇ ▇▇ares validly tendered (and not properly withdrawn) pursuant to the Offer. Each of Devon and And▇▇▇▇▇ ▇▇all use all commercially reasonable efforts to consummate the Offer, subject to the terms and conditions thereof.
(d) It is agreed that Devon may, in its sole discretion, waive any term or condition of the Offer for its benefit provided that if Devon takes up and this Agreement, Sub shall, and Parent pays for any And▇▇▇▇▇ ▇▇ares it shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and acquire not withdrawn pursuant to less than the Offer Minimum Required Shares. Devon agrees that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, it shall not contain amend any untrue statement of a material fact term 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.condition of
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 7.1, Merger Sub shall commence and Purchaser shall cause Merger Sub to commence (within the provisions meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days after (as defined in Rule 14d-1(g)(3) of the Exchange Act) from the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th remain open at least twenty (20) business day following the days from commencement of the OfferOffer (the “Initial Expiration Date”). The obligation of Merger Sub to accept for payment, payment and to pay for, for any Shares validly tendered pursuant 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 which, together with any shares of Common Stock then owned by Purchaser or Merger Sub, represents at least a majority of the shares of Common Stock outstanding (the “Minimum Condition”); and (ii) the other conditions set forth in Exhibit Annex A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without hereto. Subject to the prior written consent satisfaction or waiver by Purchaser or Merger Sub of the Company, Sub shall not waive the Minimum Condition (as defined and the other conditions of the Offer set forth in Exhibit A)) Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms and conditions of set forth in this Agreement, the Minimum Condition and only the other conditions set forth in Annex A hereto. Merger Sub expressly reserves the right to modify waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, except thathowever, without the consent of the Company, that Merger Sub shall not, and Purchaser shall cause Merger Sub not (i) reduce the number of Shares subject to the Offerto, (ii) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, extend the Offer beyond the Initial Expiration Date, 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 (vi) amend any other term or condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company (such consent to be authorized by the Board or a duly authorized committee thereof). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, prior to the termination of this Agreement, (Ai) extend the Offerif, if at the any scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Merger Sub’s obligation to accept Shares for payment (including without limitation the Minimum Condition) shall not be satisfied or waived, until extend the Offer beyond the then applicable expiration date thereof for a time period reasonably necessary to permit such time as such conditions are condition to be satisfied in increments of not more than five business days each, or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "“SEC") ”), or the staff thereof thereof, applicable to the Offer or any period required by applicable law and (C) 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 (A) Offer, or (Biii) of this sentenceif, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided the number of shares of Common Stock that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares have been validly tendered and not withdrawn pursuant to the Offer, together with any shares of Common Stock then owned by Purchaser or Merger Sub satisfies the Minimum Condition but represents less than 90% of the shares of Common Stock outstanding, extend the Offer that (one or more times) for an aggregate additional period of not more than twenty (20) business days. Merger Sub becomes obligated to accept for paymentmay also, without the consent of the Company, and pay forshall if requested by the Company, pursuant to make available a subsequent offering period in accordance with Rule 14d-11 under the Offer as promptly as practicable after the expiration Exchange Act of the Offernot less than ten business days nor more than 20 business days.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent Purchaser and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer, which . The Schedule TO shall contain or incorporate by reference an offer to purchase (the “Offer to Purchase”) and a forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be madecollectively, together with any all amendments and supplements or amendments thereto, the "“Offer Documents"”). Parent Purchaser and Merger Sub agree that shall cause the Offer Documents shall comply to be disseminated to the holders of the Shares as and to form in all material respects with the Securities Exchange Act of 1934extent required by applicable federal securities laws. Purchaser and Merger Sub, as amended (on the "Exchange Act")one hand, and the rules and regulations promulgated thereunder and the Offer DocumentsCompany, on the date first publishedother hand, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to will cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing Schedule TO before it is filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent In addition, Purchaser and Merger Sub agree to provide the Company and its counsel with any comments Parentcomments, whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and to consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this --------- Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this AgreementSeptember 29, 1995, Sub shall, and Parent shall cause Sub to, commence commence, within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Offer shall be the 20th business day following the commencement of Exchange Act (as hereinafter defined), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (and to the "--------- terms and conditions of this Agreement. The initial expiration date of the Offer Conditions") (any shall be 20 business days following the commencement of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the Offer. Without the prior written consent of the Company, Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (iii) reduce the number of Shares shares of --------- Common Stock subject to the Offer, (iiiii) reduce the Offer Price, (iii) amend or add price per share of Common Stock to be paid pursuant to the Offer ConditionsOffer, (iv) except as provided in the next sentence, extend the OfferOffer if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer Offer, or (vi) amend amend, add or waive any other term or condition of the Offer (including the conditions set forth in Exhibit A) in any manner adverse to that would --------- adversely affect the holders of the SharesCompany or its stockholders. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, Offer (i) if at the then scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Sub's obligation to accept for payment and pay for shares of Common Stock shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, ; (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer; or (iii) if all Offer --- conditions are satisfied or any period required by applicable law and (C) extend waived but the Offer on one or more occasions number of shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, for an aggregate period of not more than 10 15 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this the Agreement, Sub shall, and Parent shall cause Sub to, accept pay for payment, and pay for, all Shares shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent The Company and Sub agree that its counsel shall be given an opportunity --------------- to review and comment upon the Offer Documents prior to the filing thereof with the SEC. The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange -------- Act"), and on the rules date filed with the SEC and regulations promulgated thereunder and the Offer Documents, on the date first published, sent --- or given to the Company'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, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Sub further agree agrees to take all steps necessary necessary, and the Company agrees to take all steps reasonably requested by Parent, to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel in writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Prior to or concurrently with the expiration of the Offer, Parent shall provide or cause to be provided to Sub on a timely basis all of the funds necessary to accept for payment, and pay for, purchase any Shares shares of Common Stock that Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Syntro Corp /De/)
The Offer. (a) Subject to Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 hereof, and (ii) none of the provisions of this Agreementevents set forth in Annex I hereto shall have occurred or be existing, Merger Sub shall, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreementhereof, Sub shallbut no later than December 4, and Parent shall cause Sub to2001, commence the Offer. Each Share accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive that number of fully paid and nonassessable shares of Parent Common Stock equal to the Exchange Ratio, plus the right to receive cash in lieu of fractional Shares, if any. For purposes of this Agreement, the term "EXCHANGE RATIO" shall mean the quotient obtained by dividing the Company Stock Value by the Average Parent Post-Signing Trading Price; provided that, if the quotient obtained by dividing the Company Stock Value by the Average Parent Post-Signing Trading Price is greater than the quotient obtained by dividing the Company Stock Value by the Adjusted Average Parent Pre-Signing Trading Price, then the term "EXCHANGE RATIO" shall mean the quotient obtained by dividing the Company Stock Value by the Adjusted Average Parent Pre-Signing Trading Price. The initial expiration date for of the Offer shall be the 20th twentieth business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject to (A) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Sub (if any), represents a number equal to at least the sum of (x) a majority of the total number of Shares and (y) the total number of shares of Company Common Stock issuable upon exercise of Company Options, each as outstanding immediately prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) (the condition referred to in this sentence being referred to as the "MINIMUM CONDITION"); for the avoidance of doubt, it being understood that Shares tendered into the Offer pursuant to a Notice of Guaranteed Delivery shall be counted in the computation of the Minimum Condition only to the extent the stock certificates for such Shares are actually delivered to the Exchange Agent (or, if the Shares are delivered to the Exchange Agent via book-entry, credited to the Exchange Agent's account with The Depository Trust Company) prior to computing the Minimum Condition at the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)), and (B) each of the other conditions set forth in Exhibit A (Annex I hereto. Parent and Merger Sub expressly reserve the "right to waive one or more conditions to the Offer Conditions") (and to make any change in the terms or conditions of which may be waived in whole or in part by Sub in its sole discretionthe Offer; provided, provided thathowever, that without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not no change may be made which (i) reduce decreases the number of Shares subject to sought in the Offer, (ii) reduce changes the Offer Priceform or amount of consideration to be paid, (iii) amend or add imposes conditions to the Offer Conditionsin addition to those set forth in Annex I, (iv) except as provided in changes or waives the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer Minimum Condition or (vi) amend any other term of the Offer conditions set forth in Annex I in any manner which is adverse to the holders of Shares, (v) extends the Offer (except as set forth in the following two sentences), or (vi) makes any other change to any of the terms and conditions to the Offer which is adverse to the holders of Shares. Notwithstanding Subject to the foregoing, Sub may, without the consent terms of the Company, Offer and this Agreement and the satisfaction (Aor waiver by Parent to the extent permitted by this Agreement) extend of the conditions set forth in Annex I to the Offer, if at Merger Sub shall accept for payment all Shares validly tendered and not withdrawn pursuant to the scheduled or extended Offer as soon as practicable after the applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and shall pay for all such Shares promptly after acceptance; provided, however, that (A) Merger Sub shall extend the Offer for successive extension periods (up to the Termination Date) not in excess of ten business days per extension period if, at the scheduled expiration date of the Offer or any extension thereof, any of the conditions to the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, and (B) Merger Sub may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by the applicable federal securities laws. The Company rules and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with regulations of the SEC or dissemination to the stockholders of the CompanyNASD. Parent and In addition, Merger Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to extend the Offer Documents promptly after the receipt acceptance of such commentsShares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Exelixis Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 25 business days beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholdersshareholders, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders shareholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders shareholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Edmark Corp)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 9.01 and none of the provisions of this Agreementevents set forth in Annex A hereto shall have occurred and be continuing, as promptly as practicable practicable, but in no event later than five eight business days days, after the date of the public announcement by Parent and the Company of this Agreementhereof, Sub shall, and Parent shall cause Sub to, and Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (such Act and the rules and regulations promulgated thereunder being referred to herein as the "Exchange Act")) a tender offer (the "Offer") to purchase all of the issued and outstanding shares of Class A Common Stock for $5.20 per share (such amount, or any greater amount per share paid pursuant to the Offer. The initial expiration date for , the Offer shall be "Per Share Amount") net to the 20th business day following the commencement of the Offerseller in cash. The obligation of Sub to consummate the Offer and to accept for payment, payment and to pay for, for any Shares shares of Class A Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreementhereto. Sub expressly reserves the right to modify waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer. Notwithstanding the foregoing, except that, without the consent of the Company, Sub shall not no change may be made which (i) reduce decreases the number Per Share Amount, (ii) changes the form of Shares subject consideration to be paid in the Offer, (ii) reduce the Offer Price, (iii) amend or add reduces the number of shares of Class A Common Stock sought to be purchased in the Offer ConditionsOffer, (iv) except as provided imposes conditions to the Offer in the next sentence, extend the Offeraddition to those set forth in Annex A hereto, (v) change extends the form expiration date of consideration payable in the Offer (which shall initially be the minimum period that the Offer must remain open under the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")) or (vi) amend otherwise alters or amends any other term of the Offer in any manner adverse to the holders of shares of Class A Common Stock; provided, however, that (subject to the Shares. Notwithstanding the foregoing, Sub may, without the consent right of the Company, (Aparties to terminate this Agreement in accordance with Section 9.01) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not may be satisfied or waived, until such time as such conditions are satisfied or waived, extended (B1) extend the Offer for any period to the extent required by law or by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer Offer, (2) on one or any more occasions (each such extension period required by applicable law and (Cnot to exceed 10 business days at one time) extend if at the then scheduled expiration date of the Offer any of the conditions to Sub's obligations to accept for payment and pay for Class A Common Stock set forth in Annex A hereto shall not be satisfied or waived, (3) on one or more occasions for an aggregate period of not more than 10 business days beyond if the latest expiration date that would otherwise be permitted under clause Minimum Condition (Aas defined in Annex A hereto) or (B) of this sentence, if on such expiration date there shall not have has been tendered at least satisfied but less than 90% of the then outstanding Sharesshares of Class A Common Stock have been validly tendered and not properly withdrawn, and (4) to provide for a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act. Parent and Sub agree that if all of that, in the event Sub is unable to consummate the Offer Conditions are not satisfied on any scheduled or prior to the expiration date of the Offer 7 then, provided that all such due to the failure of any conditions are reasonably capable of being set forth in Annex A hereto to be satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject but subject to the terms and conditions right of the Offer parties to terminate this Agreement in accordance with Section 9.01 and this Agreementto the right of Parent to exercise the Merger Trigger, Sub shall, and Parent shall cause Sub to, accept and Sub shall, extend the Offer until the earlier of (i) July 31, 2000 or (ii) such time as each such condition has been satisfied or waived. Assuming the prior satisfaction or waiver of the conditions of the Offer and subject to the foregoing right to extend the Offer, Sub shall pay for payment, any and pay for, all Shares shares of Class A Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offertermination thereof.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Carson Inc)
The Offer. (a) Subject to this Agreement not having been terminated in accordance with the provisions of this AgreementSection 7.1 hereof, Lockheed ▇▇▇▇▇▇, acting through a wholly- owned single member Delaware limited liability company (the "OFFER SUBSIDIARY"), shall as promptly as practicable practicable, but in no event later than five business days after from the date of the public announcement by Parent and of the Company terms of this Agreement, Sub shallcommence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and Parent all rules and regulations promulgated thereunder (the "EXCHANGE ACT")) an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, the "OFFER") up to the number of shares (collectively, the "SHARES") of COMSAT's common stock, without par value (the "COMSAT COMMON STOCK"), that is equal to the remainder of (i) 49% of the number of shares of COMSAT Common Stock outstanding at the close of business on the date of purchase pursuant to the Offer minus (ii) the number of shares of ----- COMSAT Common Stock then owned of record by "authorized carriers" (as defined in the Communications Satellite Act of 1962, as amended, 47 U.S.C. (S)701 et. seq., and all rules and regulations promulgated thereunder (the "SATELLITE ACT")) ("AUTHORIZED CARRIERS"), as evidenced by issuance of shares of Series II COMSAT Common Stock, minus (iii) the number of shares of COMSAT Common Stock with ----- respect to which written demand shall cause Sub tohave been made and not withdrawn under Section 29-373 of the District of Columbia Business Corporation Act (the "DCBCA"), commence at a price of not less than $45.50 per Share, net to the seller in cash (the "OFFER PRICE"). Lockheed ▇▇▇▇▇▇ shall extend the Offer. The initial expiration date , for periods of no more than 60 days, until the Offer shall be earlier of (i) the 20th business day following the commencement one year anniversary of the Offerdate hereof or (ii) 10 business days after the date on which the last of the Authorized Carrier Conditions (as defined in Exhibit A hereto) shall have been --------- obtained. The obligation of Sub Lockheed ▇▇▇▇▇▇ to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub Lockheed --------- ▇▇▇▇▇▇ in its sole discretion), provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub Lockheed ▇▇▇▇▇▇ expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the CompanyCOMSAT, Sub Lockheed ▇▇▇▇▇▇ shall not (i) reduce the number of Shares subject to the Offer, (ii) waive the Minimum Condition (as defined in Exhibit A hereto), (iii) --------- reduce the Offer Price, (iiiiv) amend modify or add to the Offer Conditionsconditions set forth in Exhibit A, (ivv) except as provided in the next sentencethis Section 1.1(a), extend the term of the --------- Offer, (vvi) change the form of the consideration payable in the Offer or (vivii) amend make any other term of the Offer in any manner modifications that are otherwise materially adverse to the holders of the SharesCOMSAT Common Stock. Notwithstanding the foregoing, Sub Lockheed ▇▇▇▇▇▇ may, without the consent of the CompanyCOMSAT, (A) extend the Offer, if at term of the Offer beyond any scheduled or extended expiration date of the Offer (but not beyond the two year anniversary of the date hereof) if, at any such scheduled expiration date, any of the conditions to Lockheed ▇▇▇▇▇▇'▇ obligation to accept for payment, and pay for, Shares tendered pursuant to the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, waived and (B) extend the Offer (but not beyond the two year anniversary of the date hereof) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by other applicable law and Law (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Sharesas hereinafter defined). Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to Upon the terms and subject to the conditions of the Offer and this AgreementOffer, Sub shall, and Parent Lockheed ▇▇▇▇▇▇ shall cause Sub to, accept for payment, payment and will pay for, all as soon as permitted under the terms of the Offer, Shares validly tendered and not withdrawn pursuant prior to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer. The date and time at which the Offer shall close is referred to as the "OFFER CLOSING TIME".
(b) On Lockheed ▇▇▇▇▇▇ shall not, nor shall it permit any of its affiliates to, tender into the date Offer any shares of COMSAT Common Stock beneficially owned by it; provided, that shares of COMSAT Common Stock held beneficially or of -------- record by any plan, program or arrangement sponsored by Lockheed ▇▇▇▇▇▇ or maintained for the benefit of employees of Lockheed ▇▇▇▇▇▇ or any of its Subsidiaries (as hereinafter defined) shall be deemed not to be held by Lockheed ▇▇▇▇▇▇ or an affiliate thereof regardless of whether Lockheed ▇▇▇▇▇▇ has, directly or indirectly, the power to vote or control the disposition of such shares of COMSAT Common Stock. COMSAT shall not, nor shall it permit any of its Subsidiaries to, tender into the Offer any shares of COMSAT Common Stock beneficially owned by it; provided, that shares of COMSAT Common Stock held -------- beneficially or of record by any plan, program or arrangement sponsored by COMSAT or maintained for the benefit of employees of COMSAT or any of its Subsidiaries shall be deemed not to be held by COMSAT regardless of whether COMSAT has, directly or indirectly, the power to vote or control the disposition of such shares of COMSAT Common Stock.
(c) Notwithstanding anything to the contrary contained in this Agreement, Lockheed ▇▇▇▇▇▇ shall not be required to commence the Offer in any foreign country where the commencement of the Offer, Parent and Sub in Lockheed ▇▇▇▇▇▇'▇ reasonable opinion, would violate the applicable Law of such jurisdiction.
(d) On the date of the commencement of the Offer, Lockheed ▇▇▇▇▇▇ shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall will contain an the offer to purchase and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). Parent and Sub agree that the The Offer Documents shall comply as to form in all material respects with the Securities requirements of the Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documentsand, on the date filed with the SEC and when first published, sent or given to the CompanyCOMSAT's stockholdersshareholders, 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 or warranty is made by Parent or Sub Lockheed ▇▇▇▇▇▇ with respect to information supplied by the Company or any of its stockholders specifically COMSAT in writing for inclusion or incorporation by reference in the Offer DocumentsDocuments or incorporated therein by reference to any statement, report or other document filed by or on behalf of COMSAT with the SEC. Each of ParentUpon obtaining knowledge, Sub and the Company agree Lockheed ▇▇▇▇▇▇ or COMSAT shall correct promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub Lockheed ▇▇▇▇▇▇ further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the CompanyCOMSAT's stockholdersshareholders, in each case as and to the extent required by applicable federal securities lawsLaws. The Company COMSAT and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing of such Offer Documents with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub agree to Lockheed ▇▇▇▇▇▇ shall provide the Company COMSAT and its counsel in writing with any comments Parent, Sub or their Lockheed ▇▇▇▇▇▇ and its counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent thereof. Lockheed ▇▇▇▇▇▇ shall provide or take all steps reasonably necessary to cause the Offer Documents to be provided filed with the SEC and disseminated to Sub on a timely basis the funds necessary to accept for paymentholders of COMSAT Common Stock, in each case as, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offerextent, required by applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Comsat Corp)
The Offer. (a) Subject (i) Provided that (x) this Agreement shall not have been terminated in accordance with Article VIII, (y) the Company has timely provided any information required to be provided by it pursuant to Sections 1.1(b) and 1.3 and (z) the Company is prepared in accordance with Section 1.2(a) to file with the Securities and Exchange Commission (“SEC”), and to disseminate to the provisions holders of this AgreementShares, the Schedule 14D-9 on the same date as Purchaser commences the Offer, Purchaser shall, as promptly as practicable after the date of this Agreement, but in no event later than five business days after the tenth (10th) day (other than Saturday or Sunday) on which banks are open in New York, New York (each such day, a “Business Day”) following the date of this Agreement and, without the public announcement by Parent and consent of the Company Company, not to be unreasonably withheld, conditioned or delayed, in no event earlier than the tenth (10th) Business Day following the date of this Agreement, Sub shallcommence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, and Parent shall cause Sub to, commence as amended (the Offer. The initial expiration date for “Exchange Act”)) the Offer shall be to purchase for cash any (subject to the 20th business day following Minimum Tender Condition) and all Shares at the commencement of the OfferOffer Price. The obligation of Sub Purchaser to accept for payment, payment and to pay for, for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver (to the extent permitted hereunder) of those conditions set forth in Exhibit A Annex I (the "“Offer Conditions"”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire at one (1) minute after 11:59 p.m. Eastern Time on the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, and/or such later time and date to which the Offer has been extended in accordance with Section 1.1(a)(ii), the “Expiration Date”). Purchaser expressly reserves the right at any of which may be waived in whole time, or in part by Sub from time to time, in its sole discretion, provided to waive any Offer Condition or modify or amend the terms of the Offer, including the Offer Price, except that, without the prior written consent of the Company, Sub shall Purchaser may not waive (A) decrease the Minimum Condition (as defined Offer Price or change the form of the consideration payable in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (iB) reduce decrease the number of Shares subject sought pursuant to the Offer, (iiC) reduce amend, modify, or waive the Minimum Tender Condition, (D) impose conditions on the Offer Price, (iii) amend or add in addition to the Offer Conditions, (ivE) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in amend or modify the Offer or (vi) amend any other term of the Offer Conditions in any a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, Shares or (AF) extend the Offer, if at the scheduled or extended expiration date Expiration Date of the Offer any of the Offer Conditions shall not be satisfied except as required or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required permitted by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the OfferSection 1.1(a)(ii).
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this ---------- Agreement, as promptly as practicable practicable, but in no event later than five business days after the date public announcement of the public announcement by Parent and the Company of this AgreementOffer, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion) and to the terms and conditions of this Agreement; provided, provided thathowever, that Sub shall not, without the prior written consent of the Company's consent, Sub shall not -------- ------- waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject shares of Company Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or add to the Offer Conditionsconditions set forth in Exhibit A, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any a manner adverse to the holders of the SharesCompany Common Stock. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to exceed 20 business days, if at the any scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Sub's obligation to accept for payment, and pay for, shares of Company Common Stock shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than 10 15 business days beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, sentence if on such expiration date there shall not have been tendered at least 90% sufficient shares of Company Common Stock so that the outstanding Shares. Parent and Sub agree that if all Merger could be effected as provided in the last sentence of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998Section 6.01(a). Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Tender Offer Statement
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there Agreement shall not have been tendered at least 90% terminated in accordance with Section 8.1 hereof and none of the outstanding Shares. Parent events set forth in Annex I hereto shall have occurred and Sub agree that if all be existing, Purchaser shall commence (within the meaning of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as reasonably practicable, but in no event later than seven business days following the public announcement by Parent and the rules Company of the execution of this Agreement. The obligation of Purchaser to accept for payment and regulations promulgated thereunder and pay for any Shares tendered pursuant to the Offer Documents, on the date first published, sent or given shall be subject to the Company's stockholderssatisfaction of the conditions set forth in Annex I. Purchaser expressly reserves the right from time to time, shall not contain subject to Sections 1.1(b) and 1.1(d) hereof, without the consent of the Company to waive any untrue statement of a material fact such condition, to increase the Per Share Amount, or omit to state any material fact required to be stated therein or necessary in order to make any other changes in the statements therein, in light terms and conditions of the circumstances under which they were madeOffer. The Per Share Amount shall be net to the seller in cash, not misleadingwithout interest, except subject to reduction only for any applicable withholding taxes or stock transfer taxes payable by the seller. The Company agrees that no representation or warranty is made by Parent or Sub with respect to information supplied Shares held by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and Subsidiary (as hereinafter defined) will be tendered pursuant to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause Offer.
(b) Without the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders written consent of the Company. Parent and Sub agree , Purchaser shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) seek to provide purchase less than all outstanding Shares, (iii) amend or waive satisfaction of the Company and its counsel any comments Parent, Sub Minimum Condition (as defined in Annex I) or their counsel may receive from the SEC or its staff with 8 respect (iv) impose conditions to the Offer Documents promptly after in addition to those set forth in Annex I hereto, or amend any other term or condition of the receipt Offer in any manner materially adverse to the holders of such comments.
Shares. Upon the terms and subject to the conditions of the Offer and this Agreement, Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer and applicable law (csubject to the first proviso to Section 8.1(c)(i)) (the "Share Purchase Date") all Shares validly tendered and not withdrawn prior to the expiration of the Offer. On or prior to the Share Purchase Date, Parent shall provide or cause to be provided to Sub on a timely basis Purchaser the funds necessary to accept pay for payment, and pay for, any Shares that Sub Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer. Purchaser shall not provide for a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act.
(c) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") having only the conditions set forth in Annex I hereto. As soon as reasonably practicable on the date the Offer is commenced, Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer
(d) The Offer to Purchase shall provide (i) for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from and including the date of commencement of the Offer (the "Initial Expiration Date"). Purchaser shall extend the expiration date of the Offer until 5:00 p.m., Eastern time, on the earlier of (i) the thirtieth (30th) business day following the public announcement by Parent and the Company of the execution of this Agreement (which thirty business days shall for this purpose include the date of such public announcement) and (ii) if a tender offer (other than the Offer) shall have been commenced for all or a portion of the Shares, the business day immediately preceding the initial expiration date of such tender offer (such earlier date, the "Extended Expiration Date"). Unless this Agreement shall have been terminated pursuant to Section 8.1 hereof, Purchaser agrees that it shall not, without the consent of the Company, terminate or withdraw the Offer or (except as provided in this Section 1.1(d)) extend the expiration date of the Offer; provided, however, that, subject to the immediately following sentence,
Appears in 1 contract
Sources: Merger Agreement (At&t Corp)
The Offer. (a) Subject to the provisions of (i) Provided that this AgreementAgreement has not been terminated in accordance with ARTICLE VIII hereto, as Purchaser will, and Parent will cause Purchaser to, promptly as practicable (but in no event later than five business days the tenth (10th) Business Day after (but not including) the date of this Agreement) commence (within the public announcement meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase all Shares at the Offer Price; provided, however, that Purchaser shall not be required to commence the Offer (and the ten (10) Business Day period referred to above shall be accordingly extended) if (i) the Company shall not have provided to Parent on a timely basis all information reasonably requested by Parent and in connection with the preparation of the Offer Documents or the Company of this Agreementshall not have reviewed and provided comments to Parent on the Offer Documents on a timely basis, Sub shall, and Parent shall cause Sub or (ii) the Company is not prepared to, commence concurrently with such commencement, file with the OfferSEC and disseminate to holders of Shares the Schedule 14D-9. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Purchaser (and of Sub Parent to cause Purchaser) to accept for payment, payment and to pay for, for any Shares tendered pursuant to the Offer shall will be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A ANNEX I (the "“Offer Conditions"”). The initial expiration date of the Offer will be the twentieth (20th) Business Day following (and including the day of) the commencement of the Offer. Purchaser expressly reserves the right (but will not be obligated) at any of which may be waived in whole time or in part by Sub from time to time in its sole discretiondiscretion to waive any Offer Condition or modify or amend the terms of the Offer, provided except that, without the prior written consent of the Company, Sub shall Purchaser will not (1) decrease the Offer Price or change the form of the consideration payable in the Offer, (2) decrease the number of Shares sought pursuant to the Offer, (3) amend or waive the Minimum Tender Condition (as defined in Exhibit AANNEX I)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii4) reduce the Offer Price, (iii) amend or add to the Offer Conditionsconditions set forth on ANNEX I, (iv5) except as provided modify the conditions set forth on ANNEX I in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A6) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied except as required or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required permitted by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (ASection 1.1(a)(iii) or (B7) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on make any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to other change in the terms and or conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant that is materially adverse to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration holders of the OfferShares.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but practicable, and in any event no event later more than five business days ten Business Days, after the date of the public announcement by Parent and the Company of this Agreement, Sub Merger Subsidiary shall, and Parent shall cause Sub Merger Subsidiary to, commence commence, within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Offer shall be Securities Exchange Act of 1934, as amended (together with the 20th business day following rules and regulations thereunder (the commencement of "Exchange Act")), the Offer. The obligation of Sub Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment, payment and pay for, for any Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (and to the "Offer Conditions") (terms and conditions of this Agreement. Parent and Merger Subsidiary expressly reserve the right to waive any of the conditions to the Offer to the extent legally permissible (other than the Minimum Condition (as defined in Annex A), which may not be waived without the prior written consent of the Company), to increase the price per Share payable in whole or the Offer and to make any other changes in part by Sub in its sole discretion, provided the terms and conditions of the Offer except that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and no change may be made to the terms and conditions Offer that would alter form of this Agreement. Sub expressly reserves consideration to be paid, no decrease in the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce Offer Price or the number of Shares subject to the Offer, (ii) reduce sought in the Offer Pricemay be made, (iii) amend or add no change which imposes additional conditions to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend modifies any other term of the Offer conditions set forth in Annex A in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offerexcept in accordance with Section 1.01(c).
(b) On the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC Securities and Exchange Commission ("SEC") a Tender Offer Statement on Schedule 14D-1 TO (as amended and supplemented from time to time, the "Schedule 14D-1TO") with respect to the Offer), which shall comply in all material respects with the provisions of applicable federal securities laws, and shall contain (including as an exhibit) or incorporate by reference the offer to purchase relating to the Offer and a forms of the related letter of transmittal and summary advertisement other appropriate documents (such Schedule 14D-1 and the documents included therein pursuant which documents, as amended or supplemented from time to which the Offer will be madetime, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Parent and Sub the Merger Subsidiary further agree that to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply as to form in all material respects with the Securities provisions of the Exchange Act of 1934, as amended (and any other applicable laws necessary to be complied with in connection with the "Exchange Act"), Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the rules Company and regulations promulgated thereunder its Subsidiaries and the Offer Documents, on the date first published, sent or given to the Company's stockholdersstockholders that may be reasonably required or requested in connection with any action contemplated by this Section 1.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written 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 or warranty is made by Parent or Sub oral) with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsDocuments promptly after receipt thereof and any responses thereto. Each of Parent, Sub Merger Subsidiary and the Company agree agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Sub Merger Subsidiary further agree to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentslaw.
(c) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, New York City time, on the date that is 20 Business Days after the date the Offer is commenced; provided, however, that without the consent of the Company, Parent and Merger Subsidiary shall have the right to extend the Offer (i) from time to time if, at any scheduled expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or earlier waived, until such conditions are satisfied or earlier waived; provided that if only the condition set forth in clause (y) of the first sentence of Annex A hereto is not satisfied or earlier waived, Parent and Merger Subsidiary shall extend the Offer at the request of the Company (but in no event shall Parent and Merger Subsidiary be obligated to extend expiration of the Offer pursuant to this clause (i) beyond September 30, 2004); and provided further that Parent and Merger Subsidiary shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of fifteen Business Days if, as of any expiration date, all of the conditions set forth in clause (z) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (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, (iii) on one or more occasions (all such occasions aggregating not more than ten Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, all of the conditions to Merger Subsidiary's obligations to accept for payment Shares are satisfied or earlier waived, but the number of Shares validly tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex A and of its right to terminate the Agreement under Sections 7.01(b), (d), (k) or (l) and (iv) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the "Subsequent Period") pursuant to Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Parent and Merger Subsidiary shall also have the right to extend the Offer in accordance with Section 7.01(f).
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration thereof (but in any event within three Business Days); provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Sub Merger Subsidiary on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares that Sub Merger Subsidiary becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Prima Energy Corp)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and that none of the events set forth in Exhibit A hereto shall have occurred or be existing (unless such event shall have been waived by Acquisition Sub), Acquiror shall cause Acquisition Sub to commence, and Acquisition Sub shall commence, the provisions of this Agreement, Offer at the Per Share Amount as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, Acquisition Sub's intention to commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Acquisition Sub to accept for payment, payment and pay for, any for 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 constitute a majority of the then outstanding Shares (determined on a fully-diluted basis (as defined herein)) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver, in whole or in part by Acquisition Sub in its sole discretion, of the other conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreementhereto. Acquisition Sub expressly reserves the right to modify waive any such condition (other than the Minimum Condition), to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer, ; except thatthat (notwithstanding Section 8.03), without the consent of Target, no change may be made by Acquisition Sub which (A) decreases the CompanyPer Share Amount (or changes the form of consideration to be paid in the Offer), Sub shall not (iB) reduce reduces the maximum number of Shares subject to be purchased in the Offer, (iiC) reduce adds to or modifies the Offer Price, (iii) amend or add conditions to the Offer Conditionsset forth in Exhibit A hereto, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (viD) amend extends, amends or changes any other term terms of the Offer in any manner materially adverse to the holders of the Shares. Notwithstanding the foregoingforegoing sentence, Acquisition Sub may, without the consent of the CompanyTarget, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Acquisition Sub's obligations to purchase the Shares have not be been satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer from time to time for up to a maximum of an aggregate of 15 business days beyond the latest expiration date that would otherwise be permitted in this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares, and/or (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law law. Notwithstanding the foregoing, (x) the Offer may not, without Target's prior written consent, be extended beyond the date of termination of this Agreement pursuant to Section 8.01 and (Cy) 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 may not, without Target's prior written consent, be permitted under extended pursuant to clause (A) or (B) of this sentencei), above, if on such expiration date there shall not have been tendered at least 90% the failure to satisfy any condition was caused by a material breach by Acquiror or Acquisition Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), Acquisition Sub shall accept for payment and this Agreementpay, as promptly as practicable after expiration of the Offer, the Per Share Amount for all Shares validly tendered and not withdrawn. Acquisition Sub shallmay, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by Acquiror 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 Acquisition Sub of its obligations under the Offer or prejudice the rights of tendering stockholders to receive payment for Shares validly tendered and Parent accepted for payment. Acquiror shall provide or cause to be provided to Acquisition Sub to, on a timely basis all funds necessary to accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Acquisition Sub shall file with the SEC and disseminate to holders of Shares to the extent required by law a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which Offer and the other Transactions (as hereinafter defined). The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934Acquiror, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Acquisition Sub and the Company Target agree promptly to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect, and Parent Acquiror and Acquisition Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company Target and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent Acquiror and Acquisition Sub agree to will provide the Company Target and its counsel with a copy of any written comments Parent, or telephonic notification of any verbal comments Acquiror or Acquisition Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt thereof and will provide Target and its counsel with a copy of such comments.
(c) Parent any written responses and telephonic notification of any verbal response of Acquiror, Acquisition Sub or their counsel. In the event that the Offer is terminated or withdrawn by Acquisition Sub, Acquiror and Acquisition Sub shall provide or cause all tendered Shares to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant returned to the Offerregistered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as defined herein).
Appears in 1 contract
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article Eight hereof and none of the provisions of this Agreementevents set forth in Annex I hereto (the "Tender Offer Conditions") shall have occurred, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreementpracticable, Sub shall, and Parent shall cause Sub tothe Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) an offer to purchase all outstanding Shares at the Offer Price, shall, after affording the Company a reasonable opportunity to review and comment thereon, file Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "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 reasonable efforts to consummate the Offer. The initial expiration date for , subject to the Offer shall be the 20th business day following the commencement of the Offerterms and conditions thereof. The obligation of Sub the Purchaser to accept for payment, and payment or pay for, for any Shares tendered pursuant to the Offer shall will be subject only to the satisfaction of the conditions set forth in Exhibit A Annex I hereto.
(the "Offer Conditions"b) (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without Without the prior written consent of the Company, Sub the Purchaser shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) amend Price or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Common Shares. Notwithstanding The Offer shall remain open until the foregoing, Sub may, without date that is 20 business days (as such term is defined in Rule 14d-1(c)(6) under the consent Exchange Act) after the commencement of the CompanyOffer (the "Expiration Date"), (A) extend unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable law, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, if as so extended, may expire; provided, however, that the Purchaser may provide a -------- ------- subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. If at any Expiration Date, any of the scheduled Tender Offer Conditions are not satisfied or extended waived by the Purchaser, the Purchaser may extend the Offer from time to time. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, the Purchaser will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer any Offer; provided that, if all of the Tender Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 70% but less than 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions Common Shares on a fully diluted basis (excluding Options (as defined herein) which are not satisfied on any scheduled expiration date of exercisable for 30 days) have been validly tendered and not withdrawn in the Offer 7 thenOffer, provided that all such conditions are reasonably capable of being satisfiedthe Purchaser shall have the right, Sub shall in its sole discretion, to extend the Offer from time to time until for up to a maximum of ten additional business days in the aggregate for all such conditions are satisfied or waivedextensions. Without the prior written consent of the Company, provided that Sub the Purchaser shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and payment or pay for, all for any Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each if, as a result, Purchaser would acquire less than the number of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps Shares necessary to cause satisfy the Schedule 14D-1 Minimum Condition (as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, defined in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsAnnex I hereto).
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Danaher Corp /De/)
The Offer. (a) Subject Provided that nothing shall have occurred that would result in a failure to satisfy any of the provisions of this Agreementconditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, but in no event later than five business days after the date of following the public announcement by Parent and of the Company terms of this Agreement, Sub shallcommence an offer (the "Offer") to purchase all of the outstanding Shares of the Company at a price of $34.00 per Share, and Parent shall cause Sub to, commence net to the Offerseller in cash. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the condition that there shall have been tendered a number of Shares which, together with the Shares then owned by Buyer and its affiliates, 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 Exhibit A (Annex I hereto. Merger Subsidiary expressly reserves the "Offer Conditions") (right to waive any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of other conditions to the Company, Sub shall not waive Offer (other than the Minimum Condition (as defined in Exhibit A)Condition) and to make any change in the terms or conditions of the Offer; provided that no change may be made which changes the form of consideration to be paid or decreases the price per Share or the number of Shares sought in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex I, amends the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject Offer in a manner adverse to the OfferCompany or, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentencetwo sentences, extend extends the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub Merger Subsidiary may, without the consent of the Company, Company (Ai) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer, if if, at the scheduled or extended expiration date, which shall be 20 business days following the date of commencement of the Offer Offer, if, at the scheduled expiration of the Offer, any of the Offer Conditions conditions to Merger Subsidiary's obligation to accept for payment and to pay for the Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law Offer. So long as this Agreement is in effect and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all condition of the Offer Conditions are not satisfied on any scheduled expiration date set forth in clause (y) of the Offer 7 thenfirst paragraph of Annex I has not been satisfied or waived, provided that all such conditions are reasonably capable of being satisfied, Sub Merger Subsidiary shall extend the Offer from time to time until such conditions are satisfied for a period or waived, provided that Sub shall successive periods not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable exceed 10 business days each after the previously scheduled expiration date of the Offer.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC Securities and Exchange Commission (the "SEC") a Rule 13E-3 Transaction Statement on Schedule 13E-3 (the "Schedule 13E-3") and a Tender Offer Statement on Schedule schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer. The Schedule 13E-3, which shall contain an the Schedule 14D-1 and the related offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be madetransmittal, together with any supplements or amendments thereto, are collectively referred to herein as the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Buyer and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Sub further agree . Merger Subsidiary agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents Schedule 14D-1 and Schedule 13E-3 prior to their filing being filed with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsSEC.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Section 9.1, as promptly as practicable possible but in no event later than five (5) business days after the date public announcement of the public announcement execution hereof by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offerparties, Parent and Sub GP shall file with cause Acquisition to commence (within the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter meaning of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Offer; and to cause Acquisition to use its best efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall accept for payment issued and outstanding shares of common stock, $0.001 par value of the Company (individually a "Share" and collectively, the "Shares") together with the associated Rights 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 shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the rules other conditions set forth in Article 7. Acquisition expressly reserves the right to waive any such condition, to increase the Per Share Amount, and regulations promulgated thereunder to make any other changes in the terms and conditions of the Offer; provided, however, that Parent, GP and Acquisition agree that no change may be made without the written consent of the Company which decreases the Per Share Amount, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which imposes conditions to the Offer in addition to those set forth in Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by Acquisition at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. The Per Share Amount shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) As soon as practicable after the date hereof, Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the Company and its counsel with any comments which Parent, Acquisition or their counsel may receive from the SEC or the staff of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws. The information provided and to be provided by Parent, GP and Acquisition for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published, published or sent or given to the Company's stockholders, shall not as the case may be, contain any untrue statement of a material fact or nor 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 provided, however, that no representation or warranty is made by Parent Parent, GP or Sub Acquisition with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.to
Appears in 1 contract
The Offer. (a) Subject On the terms and subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this AgreementJuly 15, 2011, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Merger Sub to, and of Parent to cause Merger Sub to to, accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A A.
(the "Offer Conditions"i) (any of which may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (iA) reduce the number of Shares subject to the Offer or sought to be purchased in the Offer, (iiB) reduce the Offer Price, (iiiC) amend or waive the Minimum Tender Condition, (D) add to or impose conditions to the Offer Conditionsother than the conditions set forth in Exhibit A attached hereto or modify any condition set forth in Exhibit A attached hereto, (ivE) except as provided in the next sentence, extend the Offerexpiration date of the Offer (except in accordance with Section 1.1(a)(ii) below), (vF) change the form of consideration payable in the Offer or (viG) otherwise amend any other term of or modify the Offer in any manner adverse to the holders of the Shares. Notwithstanding ; provided, however, with respect to clause (C), that Merger Sub shall have the foregoingright to increase the Minimum Tender Condition, Sub may, without but only to the consent extent necessary to ensure that following an exercise of the CompanyTop-Up Option and purchase of the Top-Up Shares, Merger Sub shall have purchased one Share more than 90% of the outstanding Shares on a fully-diluted basis.
(ii) The Offer shall initially be scheduled to expire at 5 p.m., Atlanta, Georgia time, on August 18, 2011 (the “Initial Offer Expiration Date”), provided, however, if at the Initial Offer Expiration Date, any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for up to ten (10) Business Days (in increments of at least five (5) Business Days). Thereafter, if at any then scheduled expiration of the Offer, any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties may agree) each. In addition, (A) extend the OfferMerger Sub shall, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions and Parent shall not be satisfied or waivedcause Merger Sub to, until such time as such conditions are satisfied or waived, (B) extend the Offer on one or more occasions for any the minimum period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer or any period required by applicable law Offer; and (CB) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer on one or more occasions occasion upon the request of the Company for an aggregate a period of time not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause to exceed ten (A10) or Business Days if, within ten (B10) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on Business Days before any scheduled expiration date of the Offer 7 thenOffer, provided the Company receives an Acquisition Proposal or a Change of Recommendation occurs; provided, however, that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Merger Sub shall not be required to extend the Offer beyond September 28, 1998. Subject the Outside Date and such extension shall be subject to the right to terminate the Offer in accordance with Section 1.1(a)(iv).
(iii) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, payment and pay for, for (subject to any applicable Tax withholding pursuant to Section 4.2(g)) all Shares validly tendered and not validly withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a) and in compliance with applicable Laws) and in any event in compliance with Rule 14e-1(c) under the Exchange Act. The date of 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 date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”.
(iv) If at any then-scheduled expiration of the Offer any condition to the Offer shall not have been satisfied or waived and the Outside Date shall have occurred (the “Offer Determination Date”), then Merger Sub may irrevocably and unconditionally terminate the Offer. In addition, the Company shall have the right, exercisable by delivering written notice to Parent and Merger Sub at any time from and after the Offer Determination Date to cause Merger Sub to, and upon receipt of such written notice, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably and unconditionally terminate the Offer at the then-scheduled expiration date of the Offer following the receipt of such notice from the Company (delivered no less than one (1) Business Day prior to the then-scheduled expiration date of the Offer). The termination of the Offer pursuant to this Section 1.1(a)(iv) is referred to in this Agreement as the “Offer Termination”, and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date”. Notwithstanding anything to the contrary in this Section 1.1(a)(iv), if this Agreement is terminated pursuant to Article IX, then Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer and in any event shall not acquire any Shares pursuant thereto. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Article IX, Merger Sub shall promptly 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. The parties acknowledge and agree that the Offer Termination shall not give rise to a right of termination of this Agreement except to the extent expressly provided for in Article IX and that, absent any such termination of this Agreement, the obligations of the parties hereunder other than those related to the Offer shall continue to remain in effect, including those obligations with respect to the Merger.
(v) If on or after the date hereof, the Company changes the number of Shares or securities convertible or exchangeable into or exercisable for Shares issued and outstanding prior to the Acceptance Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or stock distribution, recapitalization, merger, issuer tender or exchange offer, or other similar transaction, the Offer Price shall be equitably adjusted to reflect such change and as so adjusted shall, from and after the date of such event, be the Offer Price.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and such other ancillary documents pursuant to which the Offer will be made (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments theretothereto and such other ancillary documents, the "“Offer Documents"”). The Offer Documents will contain all information that is required to be included therein in accordance with the Exchange Act, and the rules and regulations thereunder and any other applicable Laws. Parent and Merger Sub agree that shall cause the Offer Documents shall to comply as to form in all material respects with the Securities Exchange Act requirements of 1934, as amended (the "Exchange Act")all applicable Laws, and the rules Parent and regulations promulgated thereunder and Merger Sub will take all steps necessary to cause the Offer Documents, on the date first published, sent or given Documents to be disseminated 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 Company Shareholders in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub accordance with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentsthis Agreement and with all applicable Laws. Each of Parent, Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersCompany Shareholders, in each case as and to the extent required by all applicable federal securities lawsLaws. The Company and its counsel shall be given reasonable the opportunity to review and comment upon on the Offer Documents and any supplements or amendments thereto prior to their the filing thereof with the SEC, and Parent and Merger Sub shall give due consideration to any such comments proposed by the Company or its counsel. In the event that Parent or Merger Sub receives any comments from the SEC or dissemination its staff with respect to the stockholders of Offer Documents, each shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the Companyissues raised therein. Parent and Merger Sub agree to shall (A) provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly promptly, but in no event later than twenty-four (24) hours, after the receipt of such comments, (B) provide the Company and its counsel with copies of all correspondence between Parent, Merger Sub or their counsel, on the one hand, and the SEC (or the staff of the SEC), on the other hand, (C) 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 (D) give due consideration to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, purchase and pay for, for any and all Shares that Merger Sub becomes obligated to accept for payment, payment and pay for, purchase pursuant to the OfferOffer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations under the Offer and this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Immucor Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and none of the provisions of this Agreementevents set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the date of the initial public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, Purchaser's intention to commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub Purchaser to accept for payment, payment and pay for, any for Shares tendered pursuant to the Offer shall be subject only to the condition (the "MINIMUM CONDITION") that at least the number of Shares that when added to the Shares already owned by Parent and its affiliates shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options, warrants or rights (other than the Company Rights (as defined in Section 3.03))) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Exhibit Annex A (hereto. Purchaser expressly reserves the "Offer Conditions") (right to waive any of which may be waived such condition, to increase the price per Share payable in whole or in part by Sub in its sole discretionthe Offer, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to make any other changes in the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer; PROVIDED, except thatHOWEVER, without that no change may be made which decreases the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration price per Share payable in the Offer or (vi) amend any other term which reduces the maximum number of Shares to be purchased in the Offer in any manner adverse or which imposes conditions to the holders of the SharesOffer other than those set forth in Annex A hereto. Notwithstanding the foregoing, Sub Purchaser may, without the consent of the Company, (Ai) extend the Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following the commencement of the Offer) if, if at the scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer, or any period required by applicable law and (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on as of such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if date, all of the Offer Conditions are not satisfied on any scheduled expiration date of conditions to Purchaser's obligations to accept for payment, and to pay for, the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions Shares are satisfied or waived, provided that Sub shall not be required to extend but the Offer beyond September 28, 1998. Subject to the terms and conditions number of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for paymentequals 80 percent or more, and pay forbut less than 90 percent, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
outstanding Shares on a fully diluted basis; PROVIDED, HOWEVER, that (bA) On if, on the initial scheduled expiration date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 sole condition remaining unsatisfied is (1) the "Schedule 14D-1") with respect to failure of the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and waiting period under the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 19341976, as amended (the "Exchange ActHSR ACT"), to have expired or been terminated or (2) the failure to consummate the Specialty Merger Transaction and such transaction has not been consummated solely due to the rules and regulations promulgated thereunder and failure of the waiting period under the HSR Act to have expired or been terminated, then, in either case, Purchaser shall extend the Offer Documents, from time to time until five business days after the expiration or termination of the applicable waiting period under the HSR Act and (B) if the sole condition remaining unsatisfied on the initial scheduled expiration 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 madeOffer is the condition set forth in (f) of Annex A, not misleadingthe Purchaser shall, except that no representation or warranty is made by Parent or Sub with respect to information supplied by so long as the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub breach can be cured and the Company agree promptly is vigorously attempting to correct any information provided by it for use in cure such breach, extend the Offer Documents if and from time to time until five business days after such breach is cured (provided that Purchaser shall not be required to extend the Offer beyond 35 days after such initial scheduled expiration date). The Per Share Amount shall, subject to applicable withholding of taxes, be net to the extent that such information shall have become false or misleading seller in any material respectcash, upon the terms and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated subject to the Company's stockholders, in each case as and conditions of the Offer. Subject to the extent required by applicable federal securities laws. The Company terms and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders conditions of the Company. Parent and Sub agree to provide the Company and its counsel any comments ParentOffer, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents Purchaser shall, promptly after the receipt expiration of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer, pay for all Shares validly tendered and not withdrawn.
Appears in 1 contract
Sources: Merger Agreement (Vivra Inc)
The Offer. (a) On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Guarantor, Parent and Merger Sub filed with the SEC 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”) that incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary advertisement and such other customary documents included therein (the Schedule TO, the Offer to Purchase and such other documents pursuant to which the Offer is being made, the “Offer Documents”).
(b) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than five business days three Business Days after the date of the public announcement by Parent and the Company of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The initial expiration date for offer to purchase (as so amended and supplemented, the “Offer shall be to Purchase”) and the 20th business day following other Offer Documents, in each case in accordance with the commencement terms of this Agreement, (as so amended and supplemented, the Offer. The obligation of Sub “Amended Offer Documents”), including to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to reflect the conditions set forth in Exhibit A Annex I (the "“Offer Conditions"”) and file with the SEC the Amended Offer Documents.
(c) Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of which may be waived the Company) and (iii) make any other changes in whole or the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in part each case subject to extending the Offer as required by Sub in its sole discretionapplicable Law; provided, however, that unless otherwise provided thatby this Agreement, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (iA) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (vB) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer or Conditions, (viE) amend or modify any other term of the Offer Conditions or any of the terms of the Offer in any a manner adverse to the holders of Shares or that would, individually or in the Shares. Notwithstanding aggregate, reasonably be expected to prevent, materially delay or impair the foregoingability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, without at its sole discretion prior to the consent expiration of the Company, (A) extend the Offer, if waive or change the Minimum Condition to remove the proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) provides written notification of such determination to the Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to 3 any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (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 Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (New York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (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 and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or extended expiration date of the Offer any of the other Offer Conditions shall have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waivedwaived by Parent or Merger Sub if permitted hereunder, until then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such time other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions are satisfied (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or waivedotherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and
(ii) Merger Sub shall, (B) and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by any rule, regulationapplicable Law, interpretation or position of the Securities and SEC or its staff or the New York Stock Exchange Commission LLC (the "SEC"“NYSE”) or the staff thereof its staff, in each case applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Merger Sub shall not be required to extend the Offer beyond September 28the Outside Date.
(f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer; provided, 1998that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the Company if, immediately following the expiration of the Offer, the Short Form Threshold has not been reached and cannot be reached through the immediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the 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 shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment(i) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and pay forunconditionally terminate the Offer, all (ii) not acquire any Shares validly tendered and not withdrawn pursuant to the Offer that and (iii) cause any depository acting on behalf of Merger Sub becomes obligated to accept for paymentpromptly return, and pay forin accordance with applicable Law, pursuant all tendered Shares to the Offer as promptly as practicable after the expiration of the Offerregistered holders thereof.
(bh) On The Company shall cooperate fully in the date of commencement preparation of the Offer, Amended Offer Documents to reflect the terms of this Agreement and the Company and its counsel shall be given a reasonable opportunity to review the Amended Offer Documents before they are filed with the SEC. Parent and ▇▇▇▇▇▇ Sub agree that they shall file cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, on including in connection with communicating the date first published, sent or given Offer 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 record and beneficial holders of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Shares. Each of Parent or and Merger Sub shall use its reasonable best efforts to resolve all SEC comments with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Amended Offer DocumentsDocuments as promptly as reasonably practicable after receipt thereof. Each of Parent, ▇▇▇▇▇▇ Sub and the Company agree promptly agrees to correct any information provided by it for use in the Amended Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect, and misleading. Each of Parent and Merger Sub further agree to take all steps necessary to cause shall as soon as reasonably practicable notify the Schedule 14D-1 as so corrected to be filed with Company of the receipt of any comments from the SEC and with respect to the other Amended Offer Documents as so corrected to be disseminated and any request by the SEC for any amendment to the Company's stockholdersAmended Offer Documents or for additional information and shall provide the Company with copies of all such comments and correspondence. Prior to filing or mailing the Amended Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, in each case as of Parent and to Merger Sub shall provide the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon to propose comments on such document or response and shall, in good faith, consider and incorporate the Offer Documents prior to their filing with the SEC or dissemination to the stockholders reasonable comments of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the provisions Offer pursuant to any of this Agreementthe conditions set forth in Annex I hereto, as promptly as practicable but and in no any event later than five business within ten days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence ▇▇▇▇ ▇▇▇) the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The Merger Subsidiary’s obligation of Sub to accept for payment, payment and pay for, for any Company Shares tendered pursuant to in the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Exhibit A Annex I in any manner materially adverse to the holders of Company Shares, and (iii) the "Offer Conditions") (any of which may not be waived extended except as set forth in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit Athis Section 2.01(a)) and . Subject to the terms and conditions of this Agreement. Sub expressly reserves , unless the right to modify Offer is extended in accordance with the terms of the Offerthis Agreement, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Priceshall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (iiifor this purpose calculated in accordance with Section 14d-1(g)(3) amend or add to under the ▇▇▇▇ ▇▇▇) after the date that the Offer Conditionsis commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, (iv) except as provided in the next sentence, Merger Subsidiary shall extend the OfferOffer from time to time (1) if, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer Offer, the Minimum Condition or any of the conditions to the Offer Conditions set forth in clause (I)(B) of the first paragraph of Annex I shall not be have been satisfied or waived, from time to time, until such time as the earliest to occur of (x) the satisfaction or waiver of such conditions are satisfied or waivedand (y) the End Date, and (B2) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, Applicable Law; provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub Merger Subsidiary shall not be required to extend the Offer beyond September 28the End Date. Following expiration of the Offer, 1998Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Offer and this AgreementOffer, Sub shall, and Parent Merger Subsidiary shall cause Sub to, accept for payment, payment and pay forfor (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for paymentOffer, promptly after the final expiration of the Offer, and pay for(B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after or validly tendered in any Subsequent Offering Period shall be paid net to the expiration of the Offerholder thereof in cash, subject to reduction for any applicable withholding Taxes.
(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 a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include as exhibits or incorporated by reference thereto, the Offer to purchase Purchase and a related forms of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). Parent , and Sub agree that (ii) cause the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws 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 or warranty is made reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically Merger Subsidiary for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agree agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide those comments or cause to be provided to Sub on a timely basis the funds necessary to accept for paymentother communications, and pay for(B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to discussions or meetings with the OfferSEC.
Appears in 1 contract
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article VII, then (i) on or after the provisions date of execution of this Agreement, but in any event not later than November 15, 1999, Purchaser and the Company shall publicly announce the Offer and (ii) Purchaser shall, as promptly as practicable possible, but in no event later than five business days Business Days (for purposes of this Agreement, such term having the meaning given the Rule 14d-1 under the Securities Exchange Act of 1934 (the "Exchange Act")) after the date of such public announcement, commence (within the public announcement meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase (a) all of the issued and outstanding shares of the Company Common Stock at a price per share of (Y)1490, in cash (the "Company Common Stock Offer Price") and (b) all of the issued and outstanding ADSs, at a yen price per ADS equal to one-half of the Company Common Stock Offer Price (the "ADS Offer Price" and, together with the Company Common Stock Offer Price, the "Offer Price"). Payments of the ADS Offer Price will be made in U.S. dollars by Parent converting the yen price per ADS into U.S. dollars using the noon buying rate in New York City for cable transfers of yen announced for customs purposes by the Federal Reserve Bank of New York on the date of settlement of the Offer in Japan. Purchaser may withhold and deduct amounts from such payments in accordance with Section 1.1(c). The Offer in Japan shall be made pursuant to the Registration Statement (as defined below), the Public Notice (as defined below), the Explanatory Statement (as defined below) and the Company of Application Form (as defined below) containing the terms and conditions set forth in this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for Offer in the Offer United States shall be made pursuant to an Offer to Purchase (the 20th business day following "Offer to Purchase") and related Letter of Transmittal (the commencement "Letter of the OfferTransmittal") containing terms and conditions consistent with this Agreement. The obligation of Sub Purchaser to commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any Shares properly tendered and not withdrawn pursuant to the Offer shall not be subject only to any conditions other than changes in or interpretations of, applicable laws or any court order or injunction that have the conditions set forth in Exhibit A effect of making the Offer unlawful. Purchaser expressly reserves the right, subject to compliance with the Exchange Act, the Securities and Exchange Law of Japan, as amended (the "Offer ConditionsSEL"), the Securities and Exchange Law Enforcement Order, as amended (the "Enforcement Order"), the Ministerial Ordinance (the "Ministerial Ordinance") issued by the Japanese Ministry of Finance (any the "MOF"), and the Commercial Code of which may be waived in whole or in part by Sub in its sole discretionJapan relating to joint stock corporations and certain related legislation (the "Commercial Code" and collectively with the SEL, provided thatthe Enforcement Order, without and the prior written consent of Ministerial Ordinance, the Company"Applicable Japanese Laws"), Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without . In no event shall Purchaser amend or modify the consent terms of the Company, Sub shall not Offer to (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (viiv) amend amend, alter, add or waive any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding Purchaser shall as soon as practicable after the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of Offer, which is expected to be no later than six trading days after the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toin Japan, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the OfferOffer in Japan, Parent Purchaser shall make Public Notice in the Nihon Keizai Shimbun and Sub Asahi Shimbun (the "Public Notice"), shall file the Tender Offer Registration Statement (the "Registration Statement") with the Director of the Kanto Local Finance Bureau ("DKLFB") and shall make available in Japan the Tender Offer Application Form (the "Application Form") and the Explanatory Statement (the "Explanatory Statement" and, together with the Public Notice, the Registration Statement and the Application Form, the "Domestic Offer Documents"). On the date of commencement of the Offer in the United States, Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 14D-1, as supplemented or amended from time to time (the "Schedule 14D-1") ), and Schedule 13E-3, as supplemented or amended from time to time (the "Schedule 13E-3"), with respect to the Offer, which shall contain an offer the Offer to purchase Purchase and a related letter the Letter of transmittal and Transmittal, summary advertisement and any other ancillary documents and instruments pursuant to which the Offer will be made (such the Schedule 14D-1 14D-1, the Schedule 13E-3 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Foreign Offer Documents"). Parent The "Domestic Offer Documents" and Sub agree that the "Foreign Offer Documents" are collectively referred to herein as the "Offer Documents." Purchaser agrees to take all necessary steps to cause the Domestic Offer Documents shall comply as and any related documents to form in all material respects be filed with the Securities Exchange Act of 1934, appropriate agencies or authorities as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company Applicable Japanese Laws or any other applicable laws of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsJapan. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree Purchaser agrees to take all steps necessary to cause the Schedule 14D-1 as so corrected and Schedule 13E-3 to be filed with the SEC and the other Foreign Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable federal U.S. Federal securities laws. The Company and its counsel counsel, as well as the Board of Directors consisting of the Disinterested Directors and their counsel, shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the DKLFB and the SEC or and prior to dissemination to the stockholders of the CompanyShareholders. Parent and Sub agree Purchaser shall consider all comments in good faith. Purchaser agrees to provide the Company and its counsel any comments ParentCompany, Sub or their counsel may receive from the SEC or its staff with 8 respect to Board of Directors consisting of the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.Disinterested Directors and
Appears in 1 contract
Sources: Tender Offer Agreement (Naj Co LTD)
The Offer. (a) Subject to the provisions of this AgreementAgreement and as soon as practicable, as promptly as practicable but in no any event later than within five business days after the date of the first public announcement by Parent and the Company of this Agreement, Sub shall, and Parent Investor shall cause Sub to, commence commence, within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Offer shall be the 20th business day following the commencement of Exchange Act (as hereinafter defined), the Offer. The obligation of Sub to, and of Investor to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A and to the terms and conditions of this Agreement. The Offer shall initially expire 20 business days after the date of its commencement (subject to the "other provisions of this Section 1.1); provided, however, that unless this Agreement is terminated in accordance with Article X, in which case the Offer Conditions"(whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination, at the request of the Company, Investor and Sub shall extend the expiration date of the Offer from time to time to the earlier of (any i) the date on which Sub purchases or becomes obligated to purchase that number of which may be waived Shares that would satisfy the Minimum Condition (as defined in whole or in part by Sub in Exhibit A) and (ii) the date 60 business days after the date of its sole discretion, provided that, without commencement. Without the prior written consent of the Company, Sub shall not (i) waive the Minimum Condition Condition, (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (iii) reduce the number of Shares subject to the Offer, (iiiii) reduce the Offer Price, (iii) amend or add price per share of either class of the Shares to be paid pursuant to the Offer ConditionsOffer, (iv) except as provided in the next following sentence, extend the Offer, if all of the conditions of the Offer are satisfied or waived, or (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the OfferOffer at any time, and from time to time: (i) if at the then scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Sub's obligation to accept for payment and pay for the Shares shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, ; (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission SEC (the "SEC"as hereinafter defined) or the its staff thereof applicable to the Offer or any period required by applicable law and Offer; (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than until 10 business days beyond following the latest expiration date that would otherwise be permitted under of the 10 business day period referred to in the condition in clause (A) or (Bf) of this sentence, Exhibit A and if on such expiration date there condition (f) shall not have been tendered at least 90% of the outstanding Shares. Parent satisfied, for as long as Investor and Sub agree that if shall determine until, in their sole discretion, all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.are satisfied; and
Appears in 1 contract
Sources: Agreement and Plan of Merger (Prometheus Senior Quarters LLC)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date Provided that none of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions events set forth in Exhibit Annex A hereto shall have occurred or be continuing, Purchaser shall commence (within the "Offer Conditions") (any meaning of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 Rule 14d-2 under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten business days after the execution of this Agreement. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to (i) the condition (the "Minimum Condition") that at least the number of Shares that shall, when added to the Shares already owned by Parent or Purchaser, constitute a majority 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 and (ii) the satisfaction of each of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change or waiver may be made (a) that decreases the price per Share, or changes the form of consideration, payable in the Offer, (b) that reduces the maximum number of Shares to be purchased in the Offer, (c) that imposes conditions to the Offer in addition to those set forth in Annex A hereto, (d) that changes or waives the Minimum Condition, (e) except as provided in the next sentence, that extends the Offer beyond the Initial Expiration Date (as defined herein), and (f) amends any term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which initially shall be twenty business days following the commencement of the Offer (the "Initial Expiration Date"), if, at any scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment Shares as set forth on Annex A, shall not be satisfied or waived, (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, (iii) extend the Offer for a period of up to ten business days beyond the scheduled expiration date if as of such date all of the conditions of the Offer are satisfied or have been waived but the aggregate number of Shares tendered and not withdrawn, together with Shares then owned by Parent and Purchaser, is not at least 90% of the then outstanding Shares or (iv) extend the Offer in accordance with Rule 14d-11 promulgated under the Exchange Act. Parent and Purchaser agree that if, at any scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment any of the Shares shall not be satisfied or waived, and such condition is of a nature that it could reasonably be expected to be satisfied within ninety days of the commencement of the Offer, Purchaser shall extend the Offer for the shortest time period that it believes is necessary to satisfy any such condition. 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. Notwithstanding the immediately preceding sentence and subject to the applicable rules and regulations promulgated thereunder of the SEC and the Offer Documentsterms 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 Laws (as hereinafter defined). Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to the Per Share Amount in cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the 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 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 commencement of the circumstances under which they were madeOffer, not misleadingPurchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, except that no representation or warranty is made by Parent or Sub the "Schedule TO") with respect to information supplied by the Company Offer. The Schedule TO shall contain or any of its stockholders specifically for inclusion or incorporation shall incorporate by reference in 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 such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Parent, Sub Purchaser and the Company agree promptly agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Intermagnetics General Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub Purchaser shall, and Parent shall cause Sub Purchaser to use commercially reasonable efforts to commence within five (5) Business Days from the date hereof (and in any event Purchaser shall, and Parent shall cause Purchaser to, commence within ten (10) Business Days from the Offerdate hereof), the Offer within the meaning of the applicable rules and regulations of the SEC. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Purchaser to, and of Sub Parent to cause Purchaser to, accept for payment, and pay for, any Shares shares of the Company Common Stock tendered pursuant to the Offer shall be subject only to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of the Company Common Stock that, together with shares of the Company Common Stock already owned by Parent and Purchaser or their respective Affiliates, which shall include, for the avoidance of doubt, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, would represent at least a majority of the Fully Diluted Shares (the “Minimum Tender Condition”) and (ii) the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Exhibit A (the "Offer Conditions") (any of which C as such conditions may be waived modified in accordance with the express terms of this Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth (20th) Business Day following commencement of the Offer (determined using Rule 14d-1(g)(3) of the Exchange Act). Purchaser expressly reserves the right in its sole discretion to waive, in whole or in part by Sub in its sole discretionpart, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and any condition to the terms and conditions of this Agreement. Sub expressly reserves the right to Offer or modify the terms of the Offer, except that, without the written consent of the Company, Sub Purchaser shall not (i) reduce the number of Shares shares of the Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive or amend or add to the Offer ConditionsMinimum Tender Condition, (iv) except as provided add to the conditions set forth in Exhibit C or modify any condition set forth in Exhibit C in any manner adverse to the next sentence, extend Company or the Offerholders of the Company Common Stock, (v) except as otherwise provided in this Section 2.1(a), extend the Offer or change the form of consideration payable in the Offer or (vivii) otherwise amend any other term of the Offer in any manner adverse to the Company or the holders of the SharesCompany Common Stock. Notwithstanding The parties hereto agree to cooperate in good faith to modify the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date terms of the Offer as and if required by the SEC. Notwithstanding any provision of this Agreement to the Offer Conditions contrary, Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period Offer; provided, however, that Purchaser shall not be required by applicable law to, and (C) Parent shall not be required to cause Purchaser to, 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 (A) or (B) of Outside Date. In addition, unless this sentenceAgreement has been terminated in accordance with its terms, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any otherwise scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being (i) any condition to the Offer is not satisfied, Sub Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed to by the Company) and (ii) if the Marketing Period has not ended at the time of the satisfaction or waiver of the conditions set forth in Exhibit C, Purchaser may, and Parent may cause Purchaser to, extend the Offer to time until such conditions are satisfied or waiveda date that is not more than (2) two Business Days after the end of the Marketing Period; provided, provided however, that Sub Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, extend the Offer beyond September 28, 1998the Outside Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, accept for payment, and pay for, for (subject to any withholding of Tax pursuant to Section 3.2(e)) all Shares shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Sub Purchaser becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly as practicable after the expiration of the OfferOffer (as it may be extended and re-extended in accordance with this Section 2.1(a)). Nothing contained in this Section 2.1(a) shall affect any termination rights in Article VIII.
(b) On the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "“Offer Documents"”). Parent and Sub Purchaser agree that to take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of the Company Common Stock as and to the extent required by the Exchange Act. The Company shall comply as promptly furnish to form in Parent and Purchaser all material respects with information concerning the Securities Company required by the Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer DocumentsDocuments or reasonably requested by Parent and Purchaser for inclusion therein. Each of Parent, Sub Purchaser and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect and to correct any material omissions therein; and each of Parent and Sub further agree to Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaws. Parent and Sub agree to Purchaser shall provide the Company and its counsel copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Parent, Sub Purchaser or their counsel may receive from or engage in with the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentscomments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall provide or cause to be provided to Sub Purchaser on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares shares of the Company Common Stock that Sub Purchaser becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
(d) Purchaser shall not terminate the Offer prior to any scheduled expiration thereof without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Article VIII. In the event that this Agreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, 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. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of shares of the Company Common Stock in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered shares of the Company Common Stock to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement, the Offeror shall make the Offer by way of takeover bid circular on the terms and conditions set forth as Schedule 1.1(a) hereto, including, without limitation, the following: (i) the Offer shall be open until 8:00 p.m. (Calgary time) on the 22nd day after the date of the bid as determined under the Securities Act (Alberta) or the first business day thereafter if such day is not a business day; (ii) the consideration pursuant to the Offer shall be Cdn. Sub expressly reserves $24.00 for each Common Share of the right Company; and (iii) the obligation of the Offeror to modify take-up pursuant to the Offer shall be conditional upon there having been deposited under, and not withdrawn from, the Offer at least 66 2/3% of the Common Shares (on a fully-diluted basis), other than those Common Shares held by the Offeror or its affiliates or by persons whose Common Shares may not form part of any minority approval of a subsequent acquisition transaction (the "Minimum Condition"). Subject to Section 1.2, the Offeror shall issue and mail to Shareholders the Offer, a formal take-over bid circular (the "Offer Circular") and related letter of transmittal and notice of guaranteed delivery on or before 12:00 midnight (Calgary time) on January 31, 2000.
(b) The Offer shall be made in accordance with all applicable laws.
(c) The Offer shall expire on the date referred to in Section 1.1(a)(i), provided that the Offer may be extended one or more times at the sole discretion of the Offeror if the conditions set forth in the Offer are not satisfied at the date and time at which the Offer otherwise expires (such time, as extended, the "Expiry Time"). Subject to the satisfaction or waiver of the conditions set forth in the Offer, the Offeror shall, on the first business day following the date that the conditions set forth in the Offer are satisfied and the Offeror is duly authorized under applicable law, accept for payment and pay for all Common Shares validly deposited (and not properly withdrawn) pursuant to the Offer. The Offeror shall use reasonable commercial efforts to consummate the Offer, subject only to the terms and conditions thereof and this Agreement. The Offeror will not amend the terms of the Offer, except thatother than (i) to increase the consideration payable thereunder, (ii) to waive any conditions thereof, (iii) to reduce the Minimum Condition, provided it cannot be reduced below 50% of the outstanding Common Shares without the consent of the Company; (iv) to otherwise amend any terms or conditions thereof, Sub shall provided such amendment is not (i) reduce the number of Shares subject adverse to the Offer, Shareholders; or (iiv) reduce to extend the Offer Price, expiry thereof.
(iiid) amend or add If on the first occasion on which the Offeror has taken up any Common Shares pursuant to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term Common Shares taken up represent less than 90% of the Offer in any manner adverse to then outstanding Common Shares, then the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions Offeror shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position at least 10 days.
(e) The Offeror shall cause its depositary to provide to the Company a copy of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable all reports of Common Shares tendered to the Offer or any period required by applicable law and (C) extend at the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date same time that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions reports are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the OfferOfferor.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions conditions of this AgreementAgreement and the proviso in the first sentence of Section 1.02(b), as promptly as practicable (but in no event later than five 10 business days days) after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer; provided that, if the Company is unable to file the Schedule 14D-9 on the same day Parent is prepared to commence the Offer, then such 10-business day period shall be tolled until such time as the Company is prepared to file the Schedule 14D-9 with the SEC. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation obligations of Sub to, and of Parent to cause Sub to, accept for payment, and pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "“Offer Conditions"”). The initial expiration date of the Offer shall be midnight, New York City time, on the 20th business day immediately following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) (any of which may be waived in whole or in part by under the Exchange Act). Subject to applicable Law, Sub expressly reserves the right to, in its sole discretion, provided waive, in whole or in part, any Offer Condition at any time prior to the expiration of the Offer or modify the terms of the Offer; provided, however, that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) amend waive the Minimum Tender Condition or add the conditions to the Offer Conditionsset forth in lettered paragraph (b) of Exhibit A or numbered paragraph (i) of Exhibit A, (iv) add to the conditions set forth in Exhibit A or modify any Offer Condition (other than as required by Law, the SEC or its Staff in a manner that is not adverse to the holders of Company Common Stock), (v) except as otherwise provided in the next sentencethis Section 1.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer or (vivii) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common Stock or any manner that would result in any mandatory extension of the SharesOffer (other than an increase in the Offer Price in response to an Acquisition Proposal). Notwithstanding anything in this Agreement to the foregoing, Sub may, without the consent of the Company, contrary: (A) extend in the Offer, if at the scheduled or extended expiration date of the Offer event that any of the Offer Conditions shall (including the Minimum Tender Condition or any of the other Offer Conditions set forth in Exhibit A) is not be satisfied or waivedwaived (if permitted hereunder) as of immediately prior to the expiration of the Offer (as it may be extended from time to time pursuant to and in accordance with this Section 1.01(a)), until such time Sub shall, and Parent shall cause Sub to, extend the Offer for successive extension periods of up to 10 business days each (or (x) any longer period as such may be mutually agreed by Parent and the Company or (y) any shorter period ending on the Termination Date, if applicable) in order to permit the satisfaction of all of the conditions are satisfied or waived, to the Offer; and (B) Sub shall, and Parent shall cause Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the New York Stock Exchange (the “NYSE”) or the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentenceOffer; provided, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenhowever, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to (and Parent shall not be required to cause Sub to) extend the Offer beyond September 28, 1998the Termination Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, for all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly as practicable (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) after the expiration date of the OfferOffer (as it may be extended from time to time pursuant to and in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to the Offer is referred to in this Agreement as the “Offer Closing”, and the time at which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Time”. Sub expressly reserves the right to, in its sole discretion, provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents shall provide for such a reservation of right.
(b) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Offer Closing in accordance with the terms of this Agreement.
(c) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Company shall furnish to Parent and Sub agree that all information concerning the Offer Documents shall comply as to form in all material respects with Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Sub and the Company agree shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the stockholders of the Company's stockholders, in each case as and to the extent required by applicable federal Federal securities lawsLaws, the SEC or its staff or the NYSE. The Parent and 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 its counsel shall be given provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Unless the Board of Directors of the Company has effected an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement 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 Sub shall provide the Company a reasonable opportunity to review and comment upon the on such Offer Documents prior to their filing with or response (including the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsproposed final version thereof).
(cd) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept pay for payment, and pay for, any Shares shares of Company Common Stock that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Sub.
Appears in 1 contract
Sources: Merger Agreement (Komag Inc /De/)
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as reasonably practicable but (and, in no event later than any event, within five business days (5) Business Days) after the date of the public announcement by Parent and the Company execution of this AgreementAgreement by all parties hereto), Acquisition Sub shall, and Parent shall cause Acquisition Sub to, commence commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Acquisition Sub to, and of Parent to cause Acquisition Sub to to, accept for payment, and pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A Annex I (the "“Offer Conditions"”). The Offer shall initially expire at 11:59 p.m. (New York City time) on the date that is twenty (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without 20) Business Days following the prior written consent commencement of the Company, Sub shall not waive Offer (determined using Rule 14d-1(g)(3) promulgated under the Minimum Condition (as defined in Exhibit AExchange Act)) and to the terms and conditions of this Agreement. Acquisition Sub expressly reserves the right to waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the consent of the Company, Acquisition Sub shall not, and Parent shall not permit Acquisition Sub to, (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) amend amend, modify or waive the Minimum Tender Condition, (iv) add to the Offer ConditionsConditions or amend, modify or supplement any Offer Condition in any manner adverse to any holder of Company Common Stock, (ivv) except as expressly provided in the next sentencethis Section 2.1(a), terminate, extend or otherwise amend or modify the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer Offer, (vii) otherwise amend, modify or (vi) amend supplement any other term of the terms of the Offer in any manner adverse to any holder of Company Common Stock or (viii) provide any “subsequent offering period” within the holders meaning of Rule 14d-11 promulgated under the SharesExchange Act. Notwithstanding any other provision of this Agreement to the foregoingcontrary, Acquisition Sub mayshall, without the consent of the Companyand Parent shall cause Acquisition Sub to, (Ai) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if, at any then-scheduled expiration of the Offer, if at any Offer Condition (other than the scheduled or extended expiration date of the Offer any of the Offer Conditions Minimum Tender Condition) shall not be have been satisfied or waived, until such time as each such conditions are condition shall have been satisfied or waived, waived and (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date Offer; provided, however, that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Acquisition Sub shall not be required to extend the Offer beyond September 28the Termination Date. Notwithstanding any other provision of this Agreement to the contrary, 1998if, at any then-scheduled expiration of the Offer, each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, then Acquisition Sub may and, if requested by the Company, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer by increments of five (5) Business Days; provided, however, that the maximum number of days that the Offer may be extended pursuant to this sentence shall be twenty (20) Business Days unless requested or approved by the Company; provided, further, that Acquisition Sub shall not be required to extend the Offer beyond the Termination Date. Subject to Upon the terms and subject to the conditions of the Offer and this Agreement, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn shares of Company Common Stock that Acquisition Sub becomes obligated to purchase pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer. Payment of shares of Company Common Stock by Acquisition Sub pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” 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 Section 2.1(a)), unless this Agreement is validly terminated in accordance with Section 8.1. If (i) at any then-scheduled expiration of the Offer, (x) each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived, (y) the Minimum Tender Condition shall not have been satisfied and (z) no further extensions or re-extensions of the Offer are permitted or required pursuant to this Section 2.1(a) or (ii) this Agreement is terminated pursuant to Section 8.1, then, in each case, Acquisition Sub shall promptly (and, in any event, within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. The termination of the Offer pursuant to clause (i) of the immediately preceding sentence is referred to in this Agreement as the “Offer Termination,” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date.” If the Offer is terminated or withdrawn by Acquisition Sub, or this Agreement is terminated in accordance with Section 8.1, Acquisition Sub shall promptly return, and shall cause any depository acting on behalf of Acquisition Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
(b) On the date of commencement of the Offer, Parent and Acquisition Sub shall file with the SEC SEC, in accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall contain include, as exhibits, an offer to purchase and a related letter of transmittal and transmittal, a summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents included therein pursuant to which the Offer will be mademade (such Schedule TO and the documents attached as exhibits thereto, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). The Company shall promptly furnish to Parent and Acquisition Sub agree all information concerning the Company that is required by the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Acquisition Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Acquisition Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable federal securities lawsLaws. The Parent and Acquisition Sub shall promptly notify the Company upon the receipt of any comments from the SEC (or the staff of the SEC) or any request from the SEC (or the staff of the SEC) for amendments or supplements to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between Parent, Acquisition Sub and their respective Representatives, on the one hand, and the SEC (or the staff of the SEC), on the other hand. Parent and Acquisition Sub shall use their respective reasonable opportunity best efforts to review and comment upon respond as promptly as reasonably practicable to any comments of the SEC (or the staff of the SEC) with respect to the Offer Documents. Prior to the filing of the Offer Documents prior to their filing with (or any amendment or supplement thereto) or the SEC or dissemination thereof to the stockholders of the Company. , or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, Parent and Acquisition Sub agree to shall provide the Company a reasonable opportunity to review and its counsel any to propose comments Parent, Sub on such document or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsresponse.
(c) Parent shall provide provide, or cause to be provided provided, to Acquisition Sub on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares shares of Company Common Stock that Acquisition Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Steinway Musical Instruments Inc)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Section 7.1, Merger Sub shall, as promptly as practicable but (and, in any event, no event later than five business days (5) Business Days after the date later of (x) the filing by Parent with the SEC of Parent’s Annual Report on Form 10-K for its 2009 fiscal year, or (y) the filing by the Company with the SEC of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub toCompany’s Annual Report on Form 10-K for its 2009 fiscal year), commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement Each share of the Offer. The obligation of Company Common Stock accepted by Merger Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only exchanged for the right to receive from Merger Sub, as the holder may elect: (i) such number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (A) $17.65 by (B) the Average Trading Price (such quotient, rounded to the nearest thousandth, being the “Stock Consideration”); or (ii) $17.65 in cash without interest (the “Cash Consideration”), subject to Section 1.1(c) through Section 1.1(f); provided, however, if Merger Sub has made the All-Cash Election, each share of Company Common Stock accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Merger Sub the Cash Consideration. The initial expiration date of the Offer shall be the twentieth Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following commencement of the Offer (the “Initial Expiration Date”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(b) The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(b)) (the last of such dates being referred to herein as the “Final Expiration Date”) and not withdrawn a number of shares of Company Common Stock which, together with the shares of Company Common Stock then owned by Parent and Merger Sub (if any), represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to the Final Expiration Date and (ii) the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities outstanding immediately prior to the Final Expiration Date (the “Minimum Condition” and such sum being the total shares of Company Common Stock on a “Fully Diluted Basis”) and to the other conditions set forth in Exhibit A Annex I hereto (together with the "Minimum Condition, the “Offer Conditions") (”). The Company agrees that no shares of Company Common Stock held by the Company or any of which may its Subsidiaries will be waived tendered in whole the Offer. Parent and Merger Sub expressly reserve the right to waive the Offer Conditions and to make any change in the terms or in part by Sub in its sole discretionconditions of the Offer; provided, provided thathowever, that without the prior written consent of the Company, Sub shall not waive the Minimum Condition no change may be made which (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce decreases the number of Shares subject to shares of Company Common Stock sought in the Offer, (iiB) reduce changes the form or amount of consideration to be paid (provided that the making of the All-Cash Election by the Merger Sub shall not be deemed to be such a change), (C) imposes conditions to the Offer Price, (iii) amend or add in addition to the Offer Conditions, (ivD) except as provided changes or waives the Minimum Condition or any of the conditions set forth in the next sentence, extend the Offerclauses (2), (v) change the form of consideration payable in the Offer 3), or (vi4) amend any other term of Annex I, (E) extends the expiration of the Offer (except as set forth in the following sentence), or (F) makes any other change to any of the terms and conditions to the Offer which is adverse in any manner adverse material respect to the holders of shares of Company Common Stock. Subject to the Shares. Notwithstanding the foregoing, Sub may, without the consent terms of the CompanyOffer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the Offer Conditions, (A) extend Merger Sub shall, and Parent shall cause it to, accept for payment all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer, if at Offer as soon as practicable after the scheduled or extended applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(b)) (the date on which shares of Company Common Stock are first accepted for payment under the Offer, the “Acceptance Date”) and shall pay for all such shares of Company Common Stock promptly after acceptance; provided, however, that (I) Merger Sub may extend the Offer for successive extension periods not in excess of ten (10) Business Days per extension if, at the scheduled expiration date of the Offer or any extension thereof, any of the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, (BII) if requested by the Company on any one occasion prior to or at the scheduled expiration date of the Offer, Merger Sub shall extend the Offer for a period of ten (10) Business Days in the event that any period of the Offer Conditions, other than the condition in paragraph (b) in Annex I in circumstances involving (1) a willful breach of any of the Company’s covenants, obligations or agreements hereunder or (2) a breach that would not reasonably be expected to be cured by the scheduled expiration date of the Offer as so extended pursuant to such request, shall not have been satisfied or waived at the time of such request, (III) Merger Sub may extend the Offer if and to the extent required by any rule, regulation, interpretation or position the applicable rules and regulations of the Securities and Exchange Commission (the "SEC") , NASDAQ or the staff thereof applicable NYSE, (IV) if Merger Sub makes the All-Cash Election, then Merger Sub may, in its discretion (and without the consent of the Company or any other Person), extend the Offer until the date on which materials disclosing that Merger Sub has made the All-Cash Election are disseminated to the Offer or any Company’s stockholders and for a period required by applicable law of ten (10) Business Days after such date, and (CV) Merger Sub may extend the Offer on one or more occasions occasion only for an aggregate period of not no more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause ten (A10) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that Business Days if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are have been satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions but less than 90% of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares total shares of Company Common Stock on a Fully Diluted Basis have been validly tendered and not properly withdrawn pursuant to at the Offer that Sub becomes obligated to accept for paymentotherwise scheduled Final Expiration Date; provided, and pay forfurther, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by such extension beyond the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel Outside Date shall be given reasonable opportunity to review and comment upon made without the Offer Documents prior to their filing with the SEC or dissemination to the stockholders consent of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent Subject to Section 1.1(d) through Section 1.1(f), each holder of shares of Company Common Stock shall provide be entitled to elect to receive either (i) the Cash Consideration (a “Cash Election”) in respect of all shares of Company Common Stock held by such stockholder (each such share being a “Cash Election Share”), or cause (ii) Stock Consideration (a “Stock Election”) in respect of all shares of Company Common Stock held by such stockholder (each such share being a “Stock Election Share”). With respect to each share of Company Common Stock for which no Cash Election or Stock Election has been made, the holder thereof shall be provided deemed to Sub have made a Stock Election (each such share being a “No Election Share”). Any Cash Election or Stock Election shall be made solely on a timely basis form furnished by Merger Sub for that purpose (the funds necessary “Form of Election”), included as part of the letter of election and transmittal included as part of the Offer Documents (the “Election and Transmittal Letter”), each in a form that is reasonably satisfactory to accept the Company. Holders of record who hold shares of Company Common Stock as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders.
(d) Notwithstanding any provision of this Agreement to the contrary and subject to Section 1.1(e) and Section 1.1(f):
(i) If the product of (x) the total number of Cash Election Shares and (y) the Cash Consideration (such product being the “Elected Cash Consideration”) is greater than the product of fifty percent (50%) of the number of shares of Company Common Stock validly tendered and accepted for paymentpayment by Merger Sub pursuant to the Offer and the Cash Consideration (such product, subject to adjustment as provided in Section 1.1(d)(iv), being the “Available Cash Amount”), then:
(A) each Stock Election Share and pay foreach No Election Share shall be converted into the right to receive the Stock Consideration; and
(B) each Cash Election Share shall be converted into the right to receive: (1) an amount in cash equal to the quotient obtained by dividing (I) the Available Cash Amount by (II) the total number of Cash Election Shares (such quotient being the “Adjusted Cash Consideration”); and (2) the number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (I) the amount equal to (a) the Cash Consideration minus (b) the Adjusted Cash Consideration by (II) the Average Trading Price.
(ii) If the product of (x) the sum of the total number of Stock Election Shares and the total number of No Election Shares and (y) the Stock Consideration (such product being the “Elected Stock Consideration”) is greater than the product of fifty percent (50%) of the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and the Stock Consideration (such product, subject to adjustment as provided in Section 1.1(d)(iv), being the “Available Stock Amount”), then:
(A) each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(B) each Stock Election Share and each No Election Share shall be converted into the right to receive: (1) the number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (I) the Available Stock Amount by (II) the sum of the total number of Stock Election Shares and the total number of No Election Shares (such quotient being the “Adjusted Stock Consideration”); and (2) an amount in cash equal to the product of (I) an amount equal to (a) the Stock Consideration minus (b) the Adjusted Stock Consideration and (II) the Average Trading Price.
(iii) If the Elected Cash Consideration equals the Available Cash Amount (and the Available Stock Amount as initially calculated is not adjusted pursuant to Section 1.1(d)(iv)), then:
(A) each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(B) each Stock Election Share and each No Election Share shall be converted into the right to receive the Stock Consideration.
(iv) Notwithstanding any Shares that provision of this Agreement to the contrary, in no event shall the total number of shares of Parent Common Stock issuable pursuant to the Offer exceed the Stock Consideration Cap (as defined below in this Section 1.1(d)(iv)); and accordingly, if the Stock Consideration Cap is less than the Available Stock Amount as initially calculated pursuant to Section 1.1(d)(ii), then (A) the “Available Stock Amount” as so calculated shall be adjusted and instead shall be equal to the product of (I) 19.9% of the number of shares of Parent Common Stock outstanding immediately prior to the Acceptance Date and (II) the quotient obtained by dividing (1) the total number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer, by (2) the total number of shares of Company Common Stock outstanding as of the Acceptance Date (such product also being the “Stock Consideration Cap”); and (B) the “Available Cash Amount” as initially calculated pursuant to Section 1.1(d)(i) shall be adjusted and instead shall be equal to the amount of (I) the product of (1) the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and (2) $17.65 minus (II) the product of (1) the Available Stock Amount as calculated pursuant to the immediately preceding clause (A) and (2) the Average Trading Price. Notwithstanding anything to the contrary in this Agreement, including any of Section 1.1(d) through Section 1.1(f), in no event shall the consideration per share payable pursuant to the Offer, consisting of the sum of (A) the product of that number of shares, or that fraction of a share, of Parent Common Stock, if any, issuable as the Stock Consideration for such share pursuant to the Offer multiplied by the Average Trading Price, plus (B) the cash payable as the Cash Consideration for such share pursuant to the Offer, if any, be other than $17.65.
Appears in 1 contract
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and none of the provisions events set forth in clauses (a) through (i) of this AgreementAnnex I hereto (as hereinafter provided) shall have occurred or be existing, the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as promptly as reasonably practicable after the date hereof, but in no any event not later than five business days after the date initial public announcement of the public announcement by Parent and Purchaser's intent to commence the Company of this AgreementOffer, Sub the Offer for all outstanding Shares at the Offer Price applicable to such Shares. The Offer Prices shall, subject to applicable withholding taxes, be net to the seller in cash upon the terms and Parent shall cause Sub to, commence subject to the conditions of the Offer. The initial expiration date for the Offer shall be the 20th twentieth business day following from and after the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to date the Offer shall be subject only to is commenced, including the conditions set forth date of commencement as the first business day in Exhibit A accordance with Rule 14d-2 under the Exchange Act (the "Offer ConditionsInitial Expiration Date") (any of which may be waived in whole or in part by Sub in its sole discretion). As soon as reasonably practicable, provided that, without the prior written consent of the Company, Sub Purchaser shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the staff thereof applicable "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase"), which shall be mailed to the holders of Shares with respect to the Offer. The obligation of Parent to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex I hereto. The Purchaser expressly reserves the right to waive any such condition, to increase the 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 prior written consent of the Company, the Purchaser shall not decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, change the conditions set forth in Annex I (or broaden the scope thereof) or waive the Minimum Condition (as defined in Annex I). Subject to the terms of the Offer and this Agreement and the satisfaction or waiver (to the extent permitted by this Agreement) of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Subject to Section 8.01, if the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by Parent, as of the Initial Expiration Date (or any period required by applicable law and (C) subsequently scheduled expiration date), the Purchaser shall be permitted to extend the Offer from time to time for the shortest time periods which Parent reasonably believes are necessary until the consummation of the Offer. In addition, the Purchaser shall be permitted to extend the Offer on one or more occasions for an aggregate period of not more than 10 ten business days beyond the latest expiration date that would otherwise be permitted under clause if, as of such date, all of the conditions set forth in Annex I are satisfied or waived by Parent, but the number of Common Shares and Series A Shares validly tendered and not withdrawn pursuant to the Offer (Aafter giving effect to the conversion of all such Series A Shares to Common Shares) equals 80% or (B) of this sentence, if on such expiration date there shall not have been tendered at least more but less than 90% of the then outstanding SharesCommon Shares on a fully diluted basis (not taking into account the Rights). Parent and Sub agree The Purchaser agrees that if all the conditions set forth in clauses (a) and (b) of the Offer Conditions Annex I are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided that all such conditions are reasonably capable of being satisfied, Sub the Purchaser shall extend the Offer from time to time until such conditions are condition is satisfied or waived; provided, provided however, that Sub the Purchaser shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of date five months following the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration commencement of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the The Offer Documents shall will comply as to form in all material respects with the Securities Exchange Act provisions of 1934applicable federal securities laws and, as amended (on the "Exchange Act"), date filed with the SEC and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub the Purchaser with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Parent and the Company agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Sub the Purchaser further agree agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to stockholders of the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable the opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsSEC.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Interlake Corp)
The Offer. (a) Subject On the terms and subject to the provisions conditions of this AgreementAgreement and provided that this Agreement shall not have been terminated in accordance with Article VIII, as promptly as reasonably practicable but in no event later than five business days after the date of execution of this Agreement (and in any event no later than ten (10) Business Days after the public announcement by Parent and the Company date of execution of this Agreement), Parent shall cause Merger Sub to, and Merger Sub shall, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer for all of the outstanding Company Shares (other than Excluded Shares) for a price per Company Share equal to the Offer Price (as adjusted as provided in Section 2.1(f)), paid net to the seller thereof in cash, without interest, subject to any deduction or withholding of Taxes required by applicable Law. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 promulgated under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”.
(b) Subject to satisfaction or waiver by Merger Sub of the conditions set forth in Annex I (the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to, commence the Offer. The initial expiration date ) accept for payment and pay for all Company Shares validly tendered and not properly withdrawn pursuant to the Offer shall be as soon as practicable (and in any event no later than three (3) Business Days) after the 20th business day following Expiration Date (such time, the commencement of the Offer“Acceptance Time”). The obligation of Merger Sub to accept for payment, and pay for, any payment Company Shares tendered pursuant to the Offer shall be subject only to the conditions set forth satisfaction or waiver (in Exhibit A accordance with this Agreement) by Merger Sub of each of the Offer Conditions (and shall not be subject to any other conditions).
(c) Parent and Merger Sub expressly reserve the "Offer Conditions") (right to waive any of which may be waived the Offer Conditions and to make any change in whole the terms of, or conditions to, the Offer; provided, however, that notwithstanding anything to the contrary contained in part by Sub in its sole discretion, provided thatthis Agreement, without the prior written consent of the Company, neither Parent nor Merger Sub shall not shall:
(i) waive the Minimum Condition (as defined in Exhibit AAnnex I);
(ii) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce decrease the number of Company Shares subject sought to be purchased by Merger Sub in the Offer, ;
(iiiii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, ;
(iv) extend or otherwise change the Expiration Date (except as provided in to the next sentence, extend the Offer, extent required pursuant to Section 2.1(d));
(v) change the form of consideration payable in the Offer or Offer; or
(vi) amend amend, modify or supplement any other term of the Offer Conditions or terms of the Offer in any a manner adverse to that adversely affects the holders of Company Common Stock.
(d) Unless extended as required by this Agreement, the SharesOffer shall expire at midnight (one minute following 11:59 p.m.) (New York City time) at the end of the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the Offer Commencement Date (the “Initial Expiration Date”), or in the event the Initial Expiration Date has been extended as required by this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended as required by this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) Merger Sub may, without the consent of the Company, shall (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions and Parent shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bcause Merger Sub to) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (SEC or its staff, the "SEC") NYSE or the staff thereof NASDAQ that is applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date Offer; provided, that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there in no event shall not have been tendered at least 90% of the outstanding Shares. Parent and Merger Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms Outside Date (and conditions shall not extend the Offer beyond the Outside Date without the written consent of the Company), and (ii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and this Agreementhas not been waived by Parent and Merger Sub, then Merger Sub shall, shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each, accept for paymentthe length of each such period to be determined by Parent in its sole discretion; provided, that in no event shall Merger Sub be required to extend the Offer beyond the Outside Date (and pay for, all Shares validly tendered and shall not withdrawn extend the Offer beyond the Outside Date without the written consent of the Company). Neither Parent nor Merger Sub shall extend the Offer or provide a “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act in any manner other than pursuant to and in accordance with the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to provisions of this Section 2.1(d) without the Offer as promptly as practicable after the expiration prior written consent of the OfferCompany.
(be) On The Offer may be terminated or withdrawn prior to the Expiration Date, but only if this Agreement is validly terminated in accordance with Section 8.1.
(f) Notwithstanding anything in this Agreement to the contrary (including Section 2.1(c)), if, from the date of commencement this Agreement until the Acceptance Time, the outstanding Company Common Stock shall have been changed into a different number of the Offershares or a different class by reason of any reclassification, Parent and Sub stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment or other similar transaction, or a stock dividend or stock distribution thereon shall file be declared with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offerrecord date within said period, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel Price shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree appropriately adjusted, without duplication, to provide the holders of Company and its counsel Common Stock the same economic effect as contemplated by this Agreement prior to such event; provided, that no such adjustment shall result in any comments Parent, Sub increase or their counsel may receive from decrease of the SEC aggregate Merger Consideration. Nothing in this Section 2.1(f) shall be deemed to permit or its staff with 8 respect authorize any party hereto to the Offer Documents promptly after the receipt of effect any such comments.
(c) Parent shall provide change that it is not otherwise specifically authorized or cause permitted to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, taken pursuant to the Offerthis Agreement.
Appears in 1 contract
The Offer. (a) Subject At all times prior to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date end of the public announcement by Parent and the Company of this AgreementCertain Funds Period, Sub TUC shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not :
(i) reduce cause Bidco, until the number earlier of Shares subject to the Offer, (ii) reduce date the Offer Pricelapses or is finally closed, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934City Code, as amended the Financial Services ▇▇▇ ▇▇▇▇ (the "Exchange Act"), UK) and the rules Companies Act and all other applicable laws and regulations promulgated thereunder and relevant in the context of the Offer;
(ii) cause Bidco to provide the Administrative Agent with such information regarding the progress of the Offer Documentsas it may reasonably request and, on provided no breach of the date first publishedCity Code would result, sent or all material written advice given to it in respect of the Company's stockholders, Offer;
(iii) not cause or permit Bidco to declare the Offer unconditional at a level of acceptances below that required by Rule 10 of the City Code;
(iv) cause Bidco to ensure that at no time shall not contain any untrue statement of circumstances arise whereby a material fact or omit to state any material fact mandatory offer is required to be stated therein made by the terms of Rule 9 of the City Code in respect of the Target Shares;
(v) not cause or necessary in order permit Bidco, without the prior consent of the Administrative Agent (acting on the instructions of the Required Lenders), to make the statements thereinwaive, amend or agree or decide not to enforce, in light whole or in part, the conditions of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect Offer set out in paragraph (c) (Referral) of Appendix 1 to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each Press Release;
(vi) not cause or permit Bidco, without the prior consent of Parentthe Administrative Agent (acting on the instructions of the Required Lenders), Sub and the Company agree promptly such consent not to correct any information provided by it for use in be unreasonably withheld or delayed, to waive, amend (but not including extending the Offer Documents if and period, which shall be at Bidco's discretion provided that the Offer is closed within the period required by paragraph (ix) below of this Section 5.14) or agree or decide not to the extent that such information shall have become false invoke, in whole or misleading in part, in any material respect, any of the other material conditions of the Offer (and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected Borrowers acknowledge that the total indebtedness of the TEG Group requiring to be filed with the SEC refinanced, and the other Offer Documents as so corrected to be disseminated to amount of any contingent liabilities of the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment TEG Group which would or might crystallize upon the Offer Documents prior becoming unconditional, are material), provided that TUC shall not be in breach of this paragraph (vi) if it fails to their filing cause Bidco to invoke a condition of the Offer because the Takeover Panel has directed that Bidco may not do so;
(vii) cause Bidco to keep the Joint Lead Arrangers informed and consult with them as to:
(A) the terms of any undertaking or assurance proposed to be given by it, any of its Affiliates or any member of the TEG Group to the Director General of Electricity Supply, the Director General of Gas Supply or the Secretary of State for Trade and Industry in connection with the SEC or dissemination Offer;
(B) the terms of any modification to the stockholders any of the Company. Parent and Sub agree to provide Licenses proposed in connection with the Company and its counsel Offer; and
(C) any comments Parent, Sub terms proposed in connection with any authorization or their counsel may receive from determination necessary or appropriate in connection with the SEC or its staff with 8 respect to Offer;
(viii) within 15 days of the date on which acceptances of the Offer Documents promptly are received from holders of not less than 90% of the Target Shares, procure that a director of Bidco issues a statutory declaration pursuant to section 429(4) of the Companies Act, gives notice to all remaining holders of Target Shares that it intends to acquire their Target Shares pursuant to section 429 of the Companies Act and cause Bidco subsequently to purchase all such Target Shares; and
(ix) in any event give notice to close the Offer no less than 120 days after the receipt of Effective Date, unless the Required Lenders agree in their discretion to extend such commentsperiod.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the provisions Offer pursuant to any of this Agreementthe conditions set forth in Annex I, as promptly as practicable but in no event later than five business days after the date of hereof (and in any event no later than ten Business Days after the public announcement by Parent and the Company of this Agreementdate hereof), Sub Merger Subsidiary shall, and Parent shall cause Sub Merger Subsidiary to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to 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 hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully-Diluted Shares (the “Minimum Condition”) and to the other conditions set forth in Exhibit A (Annex I. Merger Subsidiary expressly reserves the "Offer Conditions") (right to waive any of which may be waived the conditions to the Offer and to make any change in whole the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in part by Sub in its sole discretionwriting, provided that, without the prior written consent of the Company, Sub shall not waive (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the Offer in any manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as defined set forth in Exhibit Athis Section 2.01(a)) and . Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Sub expressly reserves Merger Subsidiary, at the right to modify the terms of the Offer, except that, without the consent request of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce extend the Offer Price(1) if, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions are satisfied or waivedconditions, (By) extend the reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (z) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend Applicable Law. Following expiration of the Offer on Offer, Merger Subsidiary may, in its sole discretion, provide one or more occasions for an aggregate period subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) 1934 Act, if, as of this sentencethe commencement of each such period, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that Sub becomes obligated number of Company Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253(a) of Delaware Law. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment, payment and pay for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after the final expiration of the OfferOffer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(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 a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase Purchase and a related forms of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). Parent , and Sub agree that (ii) cause the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws 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 or warranty is made reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically Merger Subsidiary for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agree agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide those comments or cause to be provided to Sub on a timely basis the funds necessary to accept for paymentother communications, and pay for(B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to discussions or meetings with the OfferSEC.
Appears in 1 contract
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as reasonably practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")), an offer (the "Offer") for all the outstanding shares of common stock, no par value, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock of $18.85, net to each seller in cash (the "Offer Price"). The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation obligations of Sub to, and of Parent to cause Sub to, accept for payment, and pay for, any Shares shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver by Sub of the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. A. Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares shares of the Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) amend waive or add to change the Offer ConditionsMinimum Tender Condition (as defined in Exhibit A), (iv) except as provided add to the conditions set forth in Exhibit A, modify any condition set forth in Exhibit A or amend any term of the next sentenceOffer set forth in this Agreement, extend in each case, in any manner adverse to the Offer, holders of the Company Common Stock or (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Sharesthan by adding consideration). Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) shall extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions set forth in Exhibit A (other than the Minimum Tender Condition or condition (d), (e) or (h)) to Sub's obligation to purchase shares of the Company Common Stock are not be satisfied or waived, until such time as such conditions are satisfied or waivedwaived but in no event later than September 30, 2002, and (Bii) may, without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer. In addition, if, at the scheduled or any period required by applicable law and (C) extend extended expiration date of the Offer, all the conditions to 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 (A) or (B) of this sentence, if on such expiration date there shall not have been satisfied or waived but the Company Common Stock tendered at least and not withdrawn pursuant to the Offer constitutes less than 90% of the outstanding Shares. Parent and Sub agree that if all Company Common Stock, without the consent of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfiedCompany, Sub shall extend (subject to applicable law) have the Offer from time right to time until such conditions are satisfied or waivedprovide for a "subsequent offering period" (as contemplated by Rule 14d-11 under the Exchange Act), provided that Sub shall for up to 20 business days after Sub's acceptance for payment of the shares of Company Common Stock then tendered and not be required withdrawn pursuant to extend the Offer beyond September 28, 1998Offer. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept pay for payment, and pay for, all Shares shares of the Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the OfferOffer or (in the case of shares tendered during any subsequent offering period) as soon as practicable following the valid tender thereof.
(b) On the date of commencement of the OfferOffer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule 14D-1TO") with respect to the Offer, which . The Schedule TO shall contain as an offer exhibit or incorporate by reference the Offer to purchase Purchase (or portions thereof) and a forms of the related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to shall provide the Company and its counsel with any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares shares of the Company Common Stock that Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (MSC Software Corp)
The Offer. (a) Subject to Provided that none of the provisions events set forth in Annex A hereto shall have occurred or be continuing (other than the requirements set forth in clauses (i)-(iv) of this AgreementAnnex A), Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five 5 business days after the date of the initial public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, Purchaser's intention to commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub Purchaser to accept for payment, and pay for, any payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction of each of the conditions set forth in Exhibit Annex A (hereto. Purchaser expressly reserves the "Offer Conditions") (right to waive any of which may be waived such condition, to increase the price per Share payable in whole or in part by Sub in its sole discretionthe Offer, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that no change may be made which decreases the 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 Offer in addition to those set forth in Annex A; and PROVIDED FURTHER that the condition in clause (iv) of Annex A may not be waived by Purchaser nor may any change be made to such condition without the consent of the Company. Purchaser shall from time to time extend the Offer beyond the scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer, for up to 5 business days in each instance (or for such different period to which the Company shall reasonably agree) if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment Shares shall not be satisfied or waived. In addition, if all of the conditions to the Offer are satisfied or waived but the number of shares of Class A Common Stock validly tendered and not withdrawn, together with the shares of Class A Common Stock held by Parent and Purchaser, if any, is less than ninety percent (90%) of the then-outstanding number of shares of Class A Common Stock (assuming the conversion by Parent of all shares of Class B Common Stock to Class A Common Stock as contemplated by the last sentence of this AgreementSection 1.01(a)), then upon the applicable expiration date of the Offer, Purchaser shall provide "subsequent offering periods," as such term is defined in, and in accordance with, Rule 14d-11 under the Exchange Act, for an aggregate period not to exceed twenty (20) business days (for all such extensions) and Purchaser shall (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered as of such applicable expiration date. Sub expressly reserves the right Subject to modify the terms of the Offer, except that, without Purchaser shall accept for payment and pay for all Shares at the consent earliest time at which it is permitted to do so under applicable law. Purchaser shall take all necessary action to cause all shares of Class B Common Stock so accepted to be converted to shares of Class A Common Stock as promptly as practicable on the Company, Sub shall not (i) reduce the number of Shares subject date such shares are accepted by Purchaser or on any subsequent date prior to the OfferEffective Time if, (ii) reduce the Offer Priceand only if, (iii) amend or add such conversion would permit Purchaser to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form acquire shares of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered Class A Common Stock representing at least 90% of the then outstanding Shares. Parent and Sub agree that if all Class A Common Stock.
(b) The Per Share Amount shall, subject to applicable withholding of Taxes (as hereinafter defined), be net to the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenseller in cash, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to upon the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent Offer. Purchaser shall cause Sub to, accept pay for payment, and pay for, all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer that Sub becomes obligated to accept for payment, Offer. Notwithstanding the immediately preceding sentence and pay for, pursuant subject to the Offer as promptly as practicable after the expiration applicable rules of the Offer.
(b) On SEC and the date of commencement terms and conditions of the Offer, Parent and Sub Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall file be effected in compliance with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1"Rule 14e-1(c) with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"). If the payment equal to the Per Share Amount in cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the 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 rules person requesting such payment shall have paid all transfer and regulations promulgated thereunder and other similar Taxes required by reason of the Offer Documentspayment 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.
(c) As promptly as reasonably practicable 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 commencement of the circumstances under which they were madeOffer, not misleadingPurchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, except that no representation or warranty is made by Parent or Sub the "SCHEDULE TO") with respect to information supplied by the Company Offer. The Schedule TO shall contain or any of its stockholders specifically for inclusion or incorporation shall incorporate by reference in 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 Documentsto Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "OFFER DOCUMENTS"). Each of Parent, Sub Purchaser and the Company agree promptly to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectmisleading, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities lawslaws to give effect to the Offer. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsSEC.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the provisions Offer pursuant to any of the conditions set forth in ANNEX A, as promptly as reasonably practicable after the date of this Agreement, Merger Sub shall commence the Offer, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as promptly as practicable but in no event later than five business days after amended ("EXCHANGE ACT"), to purchase any and all outstanding Shares at a price equal to the date Offer Price. The obligations of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement and of the Offer. The obligation of Parent to cause Merger Sub to to, purchase, accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit ANNEX A (the "OFFER CONDITIONS").
(b) The initial expiration date of the Offer Conditions"shall be the twentieth (20th) Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). Notwithstanding the foregoing, if, on the initial expiration date or any subsequent date as of which may be the Offer is scheduled to expire, all of the Offer Conditions have not been satisfied or waived in whole or in part by Merger Sub, then Merger Sub shall have the right to, in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition extend (as defined in Exhibit A)and re-extend) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Priceand its expiration date beyond the initial expiration date or such other date for one or more periods, (iii) amend or add to until a date as of which all of the Offer Conditions, (iv) except as provided in including the next sentenceMinimum Tender Condition, extend the Offer, (v) change the form of consideration payable in the Offer are satisfied or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shareswaived. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Companyand Parent shall cause Merger Sub to, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the any other Law. The Offer on one or more occasions for an aggregate period of may not more than 10 business days beyond the latest be terminated prior to its expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on as such expiration date there may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with ARTICLE 8. Nothing in this SECTION 1.1(B) shall not have been tendered at least 90% affect any termination rights in ARTICLE 8; and in the event of any conflict between the outstanding Shares. Parent provisions of this SECTION 1.1(B) and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenARTICLE 8, provided that all such conditions are reasonably capable of being satisfied, Sub ARTICLE 8 shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. controlling.
(c) Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) accept for payment, payment and promptly pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer that as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub becomes obligated is permitted under applicable Law to accept for payment, and pay for, payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Following the expiration of the Offer, Merger Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a "SUBSEQUENT OFFERING PERIOD") following the Acceptance Time if at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing) represent less than 80% of the outstanding Shares on a fully-diluted basis. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) under the expiration Exchange Act.
(e) Parent and Merger Sub expressly reserve the right to waive any condition to the Offer, to increase the Offer Price and/or to modify the other terms of or conditions to the Offer, except that unless otherwise provided in this Agreement, without the consent of the Company, Parent and Merger Sub shall not do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) change or waive the Minimum Tender Condition; or
(iv) change the form of consideration payable in the Offer.
(bf) On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the Offer, which Tender Offer Statement shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, being referred to as the "Offer DocumentsOFFER DOCUMENTS"). The Company shall promptly upon request of Parent provide Parent with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub agree that shall cause the Offer Documents shall to comply as to form in all material respects with the Securities requirements of the Exchange Act of 1934and, as amended (on the "Exchange Act"), date first filed with the SEC and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholdersholders of Shares, shall and not to 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 or warranty covenant is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent necessary such that such information shall have become false the Offer Documents do not contain an untrue statement of a material fact or misleading in omit to state any material respectfact required to be stated therein or necessary in order to make the statements therein, and in light of the circumstances under which they are made, not misleading. Each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyExchange Act. Parent and Merger Sub agree shall provide to provide the Company and its counsel copies of any written comments or telephonic notification of any oral comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments, and shall provide the Company with copies of all written responses and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel.
(cg) Parent The Offer Price shall provide be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or cause distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization combination, or other like change with respect to be provided Company Common Stock occurring (or for which a record date is established) on or after the date of this Agreement and prior to the payment by Merger Sub on a timely basis for the funds necessary Shares validly tendered and not withdrawn in connection with the Offer; PROVIDED, HOWEVER, the provisions of this SECTION 1.1(G) are not authority for the Company to accept for paymenttake any action referenced in SECTION 5.1(B), and pay forin the event of any conflict between the provisions of SECTION 5.1(B) and this SECTION 1.1(G), any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offerprovision of SECTION 5.1(B) shall be controlling.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article VII hereof and none of the events set forth in Annex A hereto (the "Offer Conditions") shall have occurred or be existing, within five Business Days of the date hereof, Merger Sub will commence a tender offer (the "Offer") for all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock of U.S. $25.00 net to the provisions of Seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. including Annex A hereto.
(b) The obligation of Merger Sub to accept for payment, purchase and pay for, for any Shares Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A satisfaction or waiver of the Offer Conditions, including the Offer Condition that at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Offer ConditionsMinimum Condition") (any of which may be waived in whole or in part by ). Merger Sub in its sole discretion, provided thatwill not, without the prior written consent of the Company, Sub shall not Company (such consent to be authorized by the Company Board): (i) waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the OfferCondition, (ii) reduce decrease the Offer Price, (iii) amend amount or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) decrease the number of shares of Company Common Stock sought in the Offer, (iv) impose additional conditions to the Offer, (v) change any Offer Condition or (vi) amend any other term of the Offer if any such change or amendment would be adverse in any manner adverse respect to the holders of the SharesCompany Common Stock (other than Parent or Merger Sub) or (vi) except as provided below, extend the Offer if all of the Offer Conditions have been satisfied. Notwithstanding Subject to the foregoingterms and conditions hereof, Sub maythe Offer shall remain open until midnight, New York City time, on the date that is twenty (20) Business Days after the Offer is commenced (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the CompanyCompany Board, Merger Sub may (Ax) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be have been satisfied or waived, waived for one (1) or more periods (none of which shall exceed ten (10) Business Days) until such time as such conditions are satisfied or waived, (By) extend the Offer for any such period as may be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Cz) extend the Offer on for one (1) or more occasions periods (each such period to be for not more than three (3) Business Days and such extensions to be for an aggregate period of not more than 10 business days ten (10) Business Days beyond the latest expiration date that would otherwise be permitted under clause (Ax) or (By) of this sentence, ) if on such expiration date the Offer Conditions shall have been satisfied or waived but there shall not have been tendered at least that number of shares of Company Common Stock which would equal more than ninety percent (90% %) of the issued and outstanding Sharesshares of Company Common Stock. Parent and Merger Sub agree agrees that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 Offer, then, provided that all such conditions are reasonably capable of being satisfied, Merger Sub shall extend the Offer from time for one or more periods of not more than ten (10) Business Days each if requested to time until such conditions are satisfied or waived, do so by the Company; provided that Merger Sub shall not be required to extend the Offer beyond September 28the Outside Date or, 1998. Subject to if earlier, the date of termination of this Agreement in accordance with the terms and conditions hereof. On the terms of the Offer and subject to the Offer Conditions and this Agreement, Merger Sub shallshall pay for all shares of Company Common Stock, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject Provided that nothing shall have occurred --------- that would result in a failure to satisfy any of the provisions of this Agreementconditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, but in no event later than five business days after the date of following the public announcement by Parent and of the Company terms of this Agreement, Sub shallcommence an offer (the "OFFER") to purchase all of the outstanding shares (the "SHARES") of common stock, and Parent shall cause Sub to$0.01 par value per share, commence of the OfferCompany (the "COMMON STOCK") at a price of $16.25 per Share, net to the seller in cash. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the condition that a number of Shares which, together with the Shares then owned by Buyer, represents at least a majority of the Shares outstanding on a fully diluted basis shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn (the "MINIMUM CONDITION") and to the other conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this AgreementAnnex I hereto. Sub Merger Subsidiary expressly reserves the right to modify waive the Minimum Condition or any of the other conditions to the Offer and to make any change in the terms or conditions of the Offer, except that, without ; provided that no change may be made which changes the consent form of -------- consideration to be paid or decreases the Company, Sub shall not (i) reduce price per Share or the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable sought in the Offer or (vi) amend any other term of which imposes conditions to the Offer in any manner adverse addition to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled those set forth in Annex I or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to amends the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant in a manner adverse to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the OfferCompany.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC (as defined in Section 4.7) a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, Offer which shall will contain an the offer to purchase and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively the "Offer DocumentsOFFER DOCUMENTS"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Buyer and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Sub further agree . Merger Subsidiary agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents Schedule 14D-1 prior to their filing its being filed with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsSEC.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Section 11.01, as promptly as practicable after the date hereof, but in no event later than five business days after 10 Business Days following the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent Merger Subsidiary shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Annex I hereto (the "“Offer Conditions"”). The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date.”
(b) (Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer (other than the Minimum Condition (as defined in Annex I), which is non-waivable and may not be waived in whole amended or in part by Sub in its sole discretion, modified); provided that, without the prior written consent of the CompanyCompany (provided that such consent has been approved by the Special Committee), Sub Merger Subsidiary shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not not:
(i) reduce decrease the Offer Price;
(ii) change the form of consideration to be paid in the Offer;
(iii) decrease the number of Shares subject to the Offer, ;
(iiiv) reduce extend or otherwise change the Expiration Time of the Offer Price, except as provided herein;
(iiiv) amend or add impose conditions to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in other than the Offer or Conditions; or
(vi) amend otherwise amend, modify or supplement any other term of the terms or conditions of the Offer in any a manner adverse to that adversely affects the holders of Shares.
(c) Unless extended as provided in this Agreement, the SharesOffer shall expire at midnight, New York City time, on the 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. Notwithstanding the foregoing, Sub mayMerger Subsidiary shall, without and Parent shall cause it to, extend the consent Offer (i) for one or more consecutive increments of not more than 10 Business Days from time to time if, at the Company, (A) extend then-scheduled expiration time of the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, ; provided that Parent shall not be required to extend the Offer pursuant to this clause (i) beyond the earlier of (A) the End Date and (B) extend the date that is 10 Business Days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied immediately prior to the Acceptance Time) have been satisfied and (ii) for any period required by (x) any applicable rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (By) the rules and regulations of this sentenceNASDAQ or Applicable Law; and provided further that, if on such expiration date there without the Company’s prior written consent, Parent and Merger Subsidiary shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28the then-scheduled expiration time if an Adverse Recommendation Change has occurred (except for any extension pursuant to clause (ii)). The time when the Offer expires (taking into account any permitted or required extensions in accordance with this Section 2.01(c)) is referred to herein as the “Expiration Time.” Merger Subsidiary shall not, 1998and Parent shall cause it not to, terminate or withdraw the Offer prior to the then-scheduled Expiration Time of the Offer unless this Agreement is validly terminated in accordance with its terms. In the event that this Agreement is terminated, Merger Subsidiary shall, and Parent shall cause it to, promptly, irrevocably and unconditionally terminate the Offer. In the event that the Offer is terminated, Merger Subsidiary shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on its behalf to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer and this AgreementConditions, Sub Merger Subsidiary shall, and Parent shall cause Sub it to, (i) accept for payment, as promptly as practicable (and pay forin any event within one Business Day) after the Expiration Time, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept (the time at which Shares are first accepted for paymentpayment under the Offer, the “Acceptance Time”, and the date on which the Acceptance Time occurs, the “Offer Closing Date”), and (ii) promptly thereafter pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offerfor such Shares.
(be) On As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto, which and including all exhibits thereto, the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits, the Offer to purchase and Purchase, a related form of letter of transmittal and a summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable U.S. federal securities laws. Parent and Sub agree Merger Subsidiary shall use their reasonable best efforts to ensure that the Offer Documents shall Schedule TO, and any amendments or supplements thereto, comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in SEC under the Offer DocumentsExchange Act. Each of Parent, Sub Merger Subsidiary and the Company agree agrees promptly to correct any information provided by it or on its behalf for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary Merger Subsidiary shall use their reasonable best efforts to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawslaws or the rules and regulations of NASDAQ. The Company shall furnish to Parent and Merger Subsidiary the information relating to the Company required by the Exchange Act to be set forth in the Schedule TO and the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and any Offer Documents prior to their filing Document each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments.
those comments or other communications and (cii) reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall provide be given), including by using reasonable best efforts to give the Company the opportunity to participate with Parent and Merger Subsidiary and its counsel in any substantive discussions or cause meetings with the SEC. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be provided to Sub on a timely basis the funds necessary to accept for paymentamended or modified, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offeruntil but not after it is withdrawn in accordance with Section 7.03(b).
Appears in 1 contract
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the provisions Offer pursuant to any of this Agreementthe conditions set forth in Annex I hereto, as promptly as practicable after the date hereof, but in no event later than five business days after the date of 7 Business Days following the public announcement by Parent and of the Company terms of this Agreement, Sub shallParent, acting through Merger Subsidiary, shall commence an offer (the "Offer") to purchase up to 50.1% of the Shares (the "Maximum Amount"), together with the associated Rights, outstanding at a price of $28.13 per Share and associated Right (the "Offer Consideration"), net to the seller in cash. The Offer shall remain open for a minimum of 22 Business Days, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be subject to (i) the 20th business day following condition that there shall be validly tendered in accordance with the commencement terms of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant prior to the expiration date of the Offer shall be subject only to and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents 50.1% of the Shares outstanding (the "Minimum Condition") and (ii) the other conditions set forth in Exhibit A (Annex I hereto. Merger Subsidiary expressly reserves the "Offer Conditions") (right to waive any of which may be waived the conditions to the Offer and to make any change in whole the terms of or in part by Sub in its sole discretionconditions to the Offer, provided that, that without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) Company no change may be made that changes the form of consideration payable to be paid in the Offer or (vi) amend any other term of the Merger, decreases the price per Share and associated Right, increases the Minimum Condition or the Maximum Amount, imposes conditions to the Offer in addition to those set forth in Annex I or amends any term or any condition set forth in Annex I in a manner materially adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, Merger Subsidiary shall have the right to (Ai) waive the Minimum Condition and (ii) extend the OfferOffer (x) from time to time if, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to the Offer Conditions shall not be have been satisfied or waived, waived (until such time as such conditions are satisfied or waived, ) for a number of days not to exceed 60 in the aggregate and (By) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend law. If at 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thena number of Shares has been validly tendered and not withdrawn that, provided that all such conditions are reasonably capable together with the Shares then owned by Parent and/or Merger Subsidiary, exceeds the Maximum Amount, the number of being satisfied, Sub shall extend Shares to be purchased by Merger Subsidiary pursuant to the Offer from time shall be prorated in accordance with Rule 14d-8 promulgated under the 1934 Act, so that the number of Shares purchased by Merger Subsidiary pursuant to time until such conditions are satisfied or waivedthe Offer, provided that Sub shall not be required to extend together with the Offer beyond September 28Shares then owned by Parent and Merger Subsidiary, 1998will represent 50.1% of the Shares outstanding. Subject to Upon the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, acting through Merger Subsidiary will accept for paymentpayment and purchase, and pay forwithin the time period required under applicable law, all Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer (subject to the pro ration described in the immediately preceding sentence). Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis funds necessary to purchase all Shares that Sub Merger Subsidiary becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (the "Schedule 14D-1TO") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement Offer (such Schedule 14D-1 TO and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect and to supplement the Offer Documents to include any information that shall become necessary in order to make the statements therein, and in light of the circumstances under which they were made, not misleading. Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or the dissemination thereof to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments's shareholders.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (American Freightways Corp)
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable after the date of this Agreement but in no event later than five business days after April 26, 2021, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the date meaning of Rule 14d-2 under the public announcement by Parent Exchange Act) the Offer.
(b) In accordance with the terms and the Company conditions of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Exhibit A Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to), at or as promptly as practicable following the Expiration Time, irrevocably accept for payment (the "time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in any event within two Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions". Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of which may be waived in whole or in part by Sub in its sole discretionthe Offer not inconsistent with the terms of this Agreement; provided, provided however, that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offerto, (iiA) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (vB) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions in a manner that makes such Offer Condition more difficult to satisfy, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 2.01(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, or (viI) amend otherwise amend, modify or supplement any of the other term terms of the Offer in any a manner adverse to the holders of the Shares. Notwithstanding The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VIII.
(d) The Offer shall expire at midnight (New York time) (i.e., one minute after 11:59 p.m. (New York time)) on the foregoing, Sub may, without date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the consent Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Company, Offer (A) extend such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 2.01(e), 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) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows:
(i) If, at the then-scheduled or extended expiration date of the Offer Expiration Time, any of the Offer Conditions shall has not be been satisfied or waived, until such time as such conditions are satisfied or waived, waived by Parent and Merger Sub (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by extent such waiver is permitted under this Agreement and applicable law Law), then Merger Sub shall, and (C) Parent shall cause Merger Sub to, extend the Offer on one or more occasions for an aggregate in consecutive increments of up to 5 Business Days (or such longer period of not more than 10 business days beyond with the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% prior consent of the outstanding Shares. Parent and Sub agree that if all Company (not to be unreasonably withheld, conditioned or delayed)) each (each such increment to end at 5:00 p.m., New York time, on the last Business Day of such increment) in order to permit the satisfaction of such Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Condition(s); and
(ii) Merger Sub shall, and Parent shall cause Merger Sub to, accept extend the Offer for paymentthe minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided, however, that, in each case, in no event shall Merger Sub be required to or, without the prior consent of the Company (not to be unreasonably withheld, conditioned or delayed), be permitted to extend the Offer beyond the earliest to occur of (x) the termination of this Agreement pursuant to Article VIII and (y) the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and pay forsuch adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.01(f) shall be construed to permit the Company or any other Person to take any action except to the extent consistent with, all Shares validly tendered and not withdrawn otherwise limited or prohibited by, the terms and conditions of this Agreement
(g) In the event that this Agreement is terminated in accordance with Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) as promptly as practicable (and in any event within 24 hours of such termination) irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer that and shall cause any depositary acting on behalf of Parent or Merger Sub becomes obligated to accept for paymentreturn, and pay forin accordance with applicable Law, pursuant all tendered Shares to the Offer as registered holders thereof.
(h) As promptly as practicable after the expiration of the Offer.
(b) On on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all exhibits, which shall amendments and supplements thereto, the “Schedule TO”) that will contain an offer or incorporate by reference the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the TO, together with all 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 that (ii) cause the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 disseminated to make the statements therein, in light holders of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsShares. Each of Parent, Merger Sub and the Company agree shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree shall use reasonable efforts to take all steps necessary to promptly cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to promptly be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub or Parent’s counsel any information concerning the Company and the Company’s Subsidiaries that is required by the Exchange Act or advisable to be set forth in the Offer Documents. The Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub agree to provide the Company and its counsel with any comments (including a summary of any oral comments) that Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments. Each of Parent and Merger Sub shall give the Company and its counsel a reasonable opportunity to participate in the response to any comments of the SEC or its staff with respect to the Offer Documents and shall respond promptly to any such comments.
(ci) Parent Parent, Merger Sub and the Paying Agent with respect to the Offer shall provide or cause be entitled to be provided to Sub on a timely basis deduct and withhold from the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, Offer Price payable pursuant to the OfferOffer such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, the U.S. Treasury Regulations promulgated thereunder, or any provision of state, local or non-U.S. Tax Law. To the extent amounts are so withheld and paid over to the appropriate Taxing Authority, the 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.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date public announcement of the public announcement by Parent and the Company execution of this Agreement, Sub shall, and Parent Acquisition shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub Acquisition to consummate the Offer and accept for payment, and pay for, any Shares shares of Common Stock of ▇▇▇▇▇▇▇▇, par value $1.00 per share (the "▇▇▇▇▇▇▇▇ Shares" and each holder thereof, a "▇▇▇▇▇▇▇▇ Shareholder") tendered pursuant to the Offer shall be subject only solely to the conditions set forth in Exhibit EXHIBIT A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub Acquisition in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly Acquisition reserves the right to modify the terms of the Offer, except that, without the consent of the Company▇▇▇▇▇▇▇▇, Sub Acquisition shall not (i) reduce the number of ▇▇▇▇▇▇▇▇ Shares subject to the Offer, (ii) reduce the Offer Priceprice per ▇▇▇▇▇▇▇▇ Share to be paid pursuant to the Offer, (iii) amend modify or add to the Offer Conditionsconditions set forth in EXHIBIT A, (iv) except as provided in the next sentencethis Section 1.01(a) below, extend the Offer, (v) change the form of consideration payable in the Offer Offer, or (vi) amend make any other term change in the terms of the Offer in any manner adverse to the holders of the Shares▇▇▇▇▇▇▇▇ Shareholders. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended The initial expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedNovember 20, until such time as such conditions are satisfied or waived, (B) 1997. Acquisition may extend the Offer for any period required by any rulein accordance with applicable law, regulation, interpretation or position but if the conditions set forth in EXHIBIT A are satisfied as of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any then scheduled expiration date of the Offer, the Offer 7 thenmay be extended only with the prior written consent of ▇▇▇▇▇▇▇▇ or as required by law. If the conditions set forth in EXHIBIT A are not satisfied or waived by Acquisition as of the scheduled expiration date, provided that all such conditions are reasonably capable of being satisfied, Sub Acquisition shall extend the Offer from time to time until such conditions are satisfied the earlier of the consummation of the Offer or waivedDecember 31, 1997 (provided that Sub Acquisition shall not be required obligated to extend make any such extension, if a reasonable, well-informed person would conclude that any such condition is incapable of being satisfied by December 31, 1997). Any individual extension of the Offer beyond September 28, 1998shall be for a period of no more than 10 business days. Subject to the terms and conditions of the Offer and set forth in this Agreement, Sub shall, and Parent Acquisition shall cause Sub to, accept pay for payment, and pay for, all ▇▇▇▇▇▇▇▇ Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable immediately after the expiration of the Offer.
(b) On ▇▇▇▇▇▇▇▇ will not, nor will it permit any of its Subsidiaries (as defined below) to, tender into the date Offer any Shares beneficially owned by it. For purposes of commencement this Section 1.01 only, "Subsidiaries" means, as to any Person (as defined below): (i) any corporation of which at least a majority of the Offer, Parent and Sub shall file with outstanding shares of stock having by the SEC terms thereof ordinary voting power to elect a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 majority of the circumstances under board of directors of such corporation (other than stock having such voting power solely by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of its Subsidiaries; (ii) any limited liability company, partnership or joint venture in which they were madesuch Person or Subsidiary of such Person is a managing member, not misleading, except that no representation general partner or warranty joint venturer or of which a majority of the partnership or other ownership interests are at the time owned by such Person and/or one or more of its Subsidiaries; or (iii) any entity which is made controlled (as defined below) by Parent or Sub with respect to information supplied by the Company such Person or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsSubsidiaries. Each For all other purposes of Parentthis Agreement, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information "Subsidiaries" shall have become false the meaning therefor set forth in Article III hereof. For purposes of this Agreement, (A) "Person" means any individual, corporation, company, voluntary association, limited liability company, partnership, joint venture, trust, unincorporated organization or misleading in any material respectother entity and (B) "control" (including, with correlative meanings, "controlled by" and Parent and Sub further agree "under common control with") means possession, directly or indirectly, of power to take all steps necessary to direct or cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders direction of the Company. Parent and Sub agree to provide management or policies of a Person (whether through the Company and its counsel any comments Parentownership of securities or partnership or other ownership interests, Sub by contract or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsotherwise).
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Startt Acquisition Inc & Startt Acquisition LLC)
The Offer. (a) Subject to Provided that none of the provisions of this Agreementevents set forth in Annex A hereto shall have occurred and be continuing, Purchaser shall, and Parent shall cause Purchaser to, commence the Offer as promptly as reasonably practicable after the date hereof (but in no event later than five ten (10) business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer). The obligation of Sub Purchaser to accept for payment, and pay for, any Shares payment Securities tendered pursuant to the Offer shall be subject only to (i) the condition (the "Minimum Condition") that there shall have been validly tendered and not withdrawn prior to the expiration of the Offer at least the number of shares of Company Common Stock, shares of Company Series A Preferred Stock and Warrants (determined as if shares of Company Series A Preferred Stock and Warrants have been converted into or exercised for shares of Company Common Stock) that, when added to Securities already owned by Parent, Purchaser and their subsidiaries, shall constitute two-thirds of the then outstanding shares of Company Common Stock on a Fully Diluted Basis and (ii) the satisfaction or waiver of each of the other conditions set forth in Exhibit Annex A (hereto. Purchaser expressly reserves the "Offer Conditions") (right to waive any of which may be waived in whole or in part by Sub in its sole discretionsuch condition, provided thatto increase the Per Share Amount, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to make any other changes in the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer; provided, except thathowever, that no change may be made which decreases the Per Share Amount or which reduces the maximum number of Securities to be purchased in the Offer or which modifies in any manner adverse to the holders of Securities or adds conditions to the Offer in addition to those set forth in Annex A hereto and that Purchaser shall not, without the consent of the Company, Sub shall not (i) reduce waive or change the number Minimum Condition, change the scheduled expiration date of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) or change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub Purchaser may, without the consent of the Company, : (Ai) extend the Offer in increments of no more than five (5) business days each beyond the scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer, if if, at the scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Purchaser's obligation to accept Securities for payment shall not be satisfied or waived, until such time as such provided that the Purchaser may not extend the Offer pursuant to this clause (i) for more than 10 business days in total if all of the conditions are set forth in Annex A hereto other than the Financing Condition have been satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.of
Appears in 1 contract
Sources: Merger Agreement (Mohawk Corp)
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the provisions Offer pursuant to any of this Agreementthe conditions set forth in Annex I, as promptly as practicable but after the date hereof (and in any event no event later than five business days Business Days after the date of the public announcement by Parent and the Company of this Agreementhereof), Sub Merger Subsidiary shall, and Parent shall cause Sub Merger Subsidiary to, commence (within the meaning of Rule 14d-2 under the 1▇▇▇ ▇▇▇) the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to 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 hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and to the other conditions set forth in Exhibit A (Annex I. Merger Subsidiary expressly reserves the "Offer Conditions") (right to waive any of which may be waived the conditions to the Offer and to make any change in whole the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in part by Sub in its sole discretionwriting, provided that, without the prior written consent of the Company, Sub shall not waive (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the Offer in any manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as defined set forth in Exhibit Athis Section 2.01(a)) and . Subject to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Priceshall expire at midnight, New York City time, on the date that is 20 Business Days (iiifor this purpose calculated in accordance with Section 14d-1(g)(3) amend or add to under the 1▇▇▇ ▇▇▇) after the date that the Offer Conditions, (iv) except as provided in the next sentence, is commenced. Merger Subsidiary shall extend the OfferOffer (1) if, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions are satisfied or waivedconditions, (By) extend the reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (z) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend Applicable Law. Following expiration of the Offer on Offer, Merger Subsidiary may, in its sole discretion, provide one or more occasions for an aggregate period subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) 1934 Act, if, as of this sentencethe commencement of each such period, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that Sub becomes obligated number of Company Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253(a) of Delaware Law. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment, payment and pay for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after the final expiration of the OfferOffer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(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 a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase Purchase and a related forms of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). Parent , and Sub agree that (ii) cause the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws 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 or warranty is made reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically Merger Subsidiary for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agree agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide those comments or cause to be provided to Sub on a timely basis the funds necessary to accept for paymentother communications, and pay for(B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to discussions or meetings with the OfferSEC.
Appears in 1 contract
The Offer. (a) Subject to Provided that none of the provisions of this Agreementevents set forth in Exhibit A hereto shall have occurred and be continuing, as promptly as practicable (but in no any event not later than five business days after the date public announcement of the public announcement by Parent execution and the Company delivery of this Agreement), Sub shall, and Parent shall cause Sub to, to commence (within the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement meaning of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 Rule 14d-2 under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act")), and an offer to purchase (the rules and regulations promulgated thereunder and "Offer") all outstanding shares of the Offer DocumentsCompany Common Stock at a price of $24.00 per share, on the date first published, sent or given net 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 seller in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 cash (as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, paid pursuant to the Offer, the "Offer Consideration"). The obligation of Parent and Sub to commence the Offer, to consummate the Offer and to accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer and not withdrawn shall be subject only to those conditions set forth in Exhibit A hereto.
(b) Without the prior written consent of the Company, Sub shall not (and Parent shall cause Sub not to) (i) decrease or change the form of the Offer Consideration or decrease the number of Shares sought pursuant to the Offer, (ii) change the conditions to the Offer, (iii) impose additional conditions to the Offer, (iv) extend the expiration date of the Offer beyond the initial expiration date of the Offer (except (A) as required by applicable law, (B) that Sub may extend the expiration date of the Offer for up to 20 business days after the initial expiration date of the Offer (which shall be the 20th business day after commencement of the Offer), and (C) that if any condition to the Offer has not been satisfied or waived, Sub shall extend the expiration date of the Offer for one or more periods not exceeding 60 calendar days (or, if required by the Company in its sole discretion, 120 days calendar days) in the aggregate), (v) waive the condition that there shall be validly tendered and not withdrawn prior to the time the Offer expires a number of Shares which constitutes 50.1% of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" meaning, as of any date, the number of 1
Appears in 1 contract
The Offer. (a) Subject to Provided, that this Agreement shall not have been terminated in accordance with Article VIII and none of the provisions conditions in paragraphs (c) through (e) of this AgreementExhibit A is existing, as promptly as reasonably practicable but in no event later than five business days after the date of the public announcement by Parent hereof, and the Company of this Agreementin any event within five (5) Business Days after such date, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all outstanding Shares at the Offer Price. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Merger Sub, and of Sub Parent to cause Merger Sub, to accept for payment, payment and pay for, for any Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver by Merger Sub of the conditions set forth in Exhibit A hereto (the "“Offer Conditions"”) (any of which may be waived in whole or in part by and the terms and conditions hereof. Merger Sub may, in its sole discretion, provided waive any Offer Condition or modify the terms of the Offer consistent with the terms of this Agreement, except that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the Offer Price, (ii) change the form of consideration payable in the Offer (other than by adding consideration), (iii) reduce the number of Shares subject to the Offer, (iiiv) reduce waive or change the Offer PriceMinimum Condition (as defined in Exhibit A) or the condition set forth in clause (d) of Exhibit A, (iiiv) amend or add to the Offer Conditions, (iv) except as provided Conditions or modify them in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Avi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vii) modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Shares.
(b) The Offer shall expire at 12:00 midnight, New York City time, at the end of the date that is twenty (20) business days (for purposes of this Section 1.1(b), business days shall be calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer, except as may otherwise be required by applicable Law (as defined in Section 4.4(a) hereof); provided, however, that if at the any scheduled or extended expiration date of the Offer (including any of extension thereof), (i) the Offer Conditions shall have not be been satisfied or waived, then until such time as such conditions are the Offer Conditions have been satisfied or waived, Merger Sub shall extend the Offer for one or (Bas needed) more additional consecutive periods of ten (10) business days or (ii) the Outstanding Liabilities (as defined in Section 1.1(d) hereof) of the Company exceeds the then-applicable Liabilities Threshold (as defined in Section 1.1(d) hereof), then, at the election of Merger Sub (which election shall be made no later than 9:00 a.m. New York City time on such scheduled expiration date of the Offer), (x) the Offer Price shall be adjusted, on such scheduled expiration date of the Offer, pursuant to Section 1.1(d) hereof, (y) Merger Sub shall, on such scheduled expiration date of the Offer, provide notice of such adjustment to the Company’s stockholders pursuant to and in compliance with Rule 14e-1(b) under the Exchange Act and any other applicable rules or regulations of the SEC or other applicable Law and (z) Merger Sub shall extend the Offer for an additional period of ten (10) business days, but, notwithstanding clauses (i) and (ii) of this paragraph, in no event shall the Offer remain open after 120 days from commencement thereof (the “Outside Date”); provided, further, that Merger Sub shall also extend the Offer for any additional period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof or the rules of the Nasdaq Stock Market applicable to the Offer or any Offer; provided, further, that Merger Sub may, in its sole discretion, provide a subsequent offering period required by applicable law and (Ca “Subsequent Offering Period”) extend after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act.
(c) Subject to the terms of the Offer on one or more occasions for an aggregate period and this Agreement and the satisfaction of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are Conditions, Merger Sub will accept for payment and pay for all Shares validly tendered and not satisfied validly withdrawn pursuant to the Offer as soon as practicable after the expiration date thereof (as the same may be extended or required to be extended) or (in the case of any Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof.
(d) In the event of an adjustment pursuant to Section 1.1(b)(ii)(x) on any a scheduled expiration date of the Offer 7 then(each, provided that all such conditions are reasonably capable of being satisfiedan “Adjustment Date”), Sub shall extend (i) the Offer from time Price for purposes of this Agreement shall thereafter be equal to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject $1.90 net to the terms and conditions selling Company stockholders in cash less an amount equal to the quotient of (A) the excess of the Offer Outstanding Liabilities on the Adjustment Date over $85,000,000 divided by (B) the sum of the number of issued and outstanding Shares (including for this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all purpose any vested or unvested restricted stock) on the Adjustment Date plus the number of Shares validly tendered and not withdrawn issuable pursuant to Company derivatives (whether or not vested) that would be in-the-money based on the new Offer that Sub becomes obligated to accept for payment, and pay for, Price calculated pursuant to the Offer as promptly as practicable after the expiration of the Offer.
this clause (b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"i), and (ii) the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given Liabilities Threshold for purposes of this Agreement shall be thereafter be equal 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 Liabilities Threshold as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis Adjustment Date plus the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.amount of Excess Liabilities as of such Adjustment Date plus $5,000,000. For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Ashworth Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable practicable, but in no event later than five business days after the date of the public announcement by Parent execution and the Company delivery of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in --------- its sole discretion, provided that, without the consent of the Company, Merger Sub may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to --------- the other conditions in this Agreement. The initial expiration date for of the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not not, except as provided in the next sentence: (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, ; (ii) reduce the Offer Price, price per share of Company Common Stock to be paid pursuant to the Offer; (iii) amend modify or add to the Offer Conditions, conditions set forth in Exhibit A in any manner materially adverse to the holders of Company Common --------- Stock; (iv) except as provided in the next sentence, extend the Offer, ; (v) change the form of consideration payable in the Offer Offer; or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of the SharesCompany Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, Company (Aw) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall conditions to Merger Sub's obligation to purchase shares of Company Common Stock set forth herein or in Exhibit A are not be satisfied or waivedsatisfied, until such time as such conditions are satisfied or waived; (x) extend the Offer for a period of not more than 15 business days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer; (By) extend the Offer for any period required by applicable law, including any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof SEC applicable to the Offer or any period required by applicable law Offer; and (Cz) extend the Offer on one or more occasions for an aggregate any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) this Section 1.01(a). It is agreed that the conditions to the Offer are for the benefit of Parent and Merger Sub and may be asserted by Parent or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% Merger Sub regardless of the outstanding Sharescircumstances giving rise to any such condition (including any action or inaction by Parent or Merger Sub not inconsistent with the terms hereof). Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment, and pay for, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain contain, among other things, an offer to purchase and a related letter of transmittal and summary advertisement other ancillary documents (such Schedule 14D-1 14D-l and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent and Merger Sub agree that on the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act")one hand, and the rules and regulations promulgated thereunder and the Offer Documents, Company on the date first published, sent or given to the Company's stockholdersother hand, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become is false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule 14D-1 Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide shall promptly notify the Company and its counsel regarding any comments that Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents and shall promptly after provide to the receipt Company and its counsel copies of such written comments, if any. The Company shall cooperate with Parent and Merger Sub in responding to any comments received from the SEC with respect to the Offer Documents.
(c) Subject to the terms and conditions of this Agreement, Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, and pay for, purchase any Shares shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject Provided that nothing shall have occurred that would result in a failure to satisfy any of the provisions of this Agreementconditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof, but in no event later than five business days after the date of following the public announcement by Parent and of the Company terms of this Agreement, Sub shallcommence an offer (the "Offer") to purchase all of the outstanding Shares of the Company at a price of $34.00 per Share, and Parent shall cause Sub to, commence net to the Offerseller in cash. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the condition that there shall have been tendered a number of Shares which, together with the Shares then owned by Buyer and its affiliates, 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 Exhibit A (Annex I hereto. Merger Subsidiary expressly reserves the "Offer Conditions") (right to waive any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of other conditions to the Company, Sub shall not waive Offer (other than the Minimum Condition (as defined in Exhibit A)Condition) and to make any change in the terms or conditions of the Offer; provided that no change may be made which changes the form of consideration to be paid or decreases the price per Share or the number of Shares sought in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex I, amends the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject Offer in a manner adverse to the OfferCompany or, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentencetwo sentences, extend extends the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub Merger Subsidiary may, without the consent of the Company, Company (Ai) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer, if if, at the scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Merger Subsidiary's obligation to accept for payment and to pay for the Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law Offer. So long as this Agreement is in effect and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all condition of the Offer Conditions are not satisfied on any scheduled expiration date set forth in clause (y) of the Offer 7 thenfirst paragraph of Annex I has not been satisfied or waived, provided that all such conditions are reasonably capable of being satisfied, Sub Merger Subsidiary shall extend the Offer from time to time until such conditions are satisfied for a period or waived, provided that Sub shall successive periods not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable exceed 10 business days each after the previously scheduled expiration date of the Offer.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC Securities and Exchange Commission (the "SEC") a Rule 13E-3 Transaction Statement on Schedule 13E-3 (the "Schedule 13E- 3") and a Tender Offer Statement on Schedule schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer. The Schedule 13E-3, which shall contain an the Schedule 14D-1 and the related offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be madetransmittal, together with any supplements or amendments thereto, are collectively referred to herein as the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Buyer and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Sub further agree . Merger Subsidiary agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents Schedule 14D-1 and Schedule 13E-3 prior to their filing being filed with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsSEC.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Asa Holdings Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days (5) Business Days after the date of the public announcement by Parent Nationwide and the Company Allied of this Agreement, Nationwide and Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to, and of Nationwide to cause Sub to, complete the Offer and accept for payment, and pay for, any Common Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") to Purchase (any of which may be waived in whole or in part by Sub in its sole reasonable discretion, provided that, without the prior written consent of the Company, except that Sub shall not waive the Minimum Condition (as defined in Exhibit A)) without the consent of Allied) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the CompanyAllied, Sub shall not (i) reduce the number of Common Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the conditions to the Offer Conditionsdescribed in Exhibit A, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Common Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, Allied,
2 7 (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer for any reason 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 (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent Nationwide shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent Nationwide and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain contained an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be has been made, together with any supplements or amendments thereto, the "Offer Documents"). Parent Nationwide and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the CompanyAllied's stockholdersshareholders, 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 or warranty covenant is made by Parent Nationwide or Sub with respect to information supplied by the Company Allied or any of its stockholders shareholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentNationwide, Sub and the Company agree Allied agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent Nationwide and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. Provided that (a) Subject this Agreement shall not have been terminated in accordance with Article VI hereof, (b) the Share Tender Agreements shall have been executed simultaneously with this Agreement and (c) the Board of Directors has taken action to eliminate any requirement that the provisions Salary Continuation Agreements Trust be fully funded for all current benefit obligations upon a change of this Agreementcontrol of the Company, and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as promptly as practicable practicable, but in no event later than five the fifth business days day after the date of the public announcement by Parent and of the Company execution of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation obligations of Sub to accept for payment, payment and promptly to pay for, for any Shares shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Tender Offer Conditions") (, any of which may be waived in whole or in part by Sub in its sole discretionParent and Sub; PROVIDED, provided HOWEVER, that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) condition that there shall have been validly tendered and not validly withdrawn prior to the terms expiration of the Offer a number of shares of Common Stock which represent at least 70% of the total voting power of all shares of capital stock of the Company outstanding on a fully diluted basis (the "Minimum Condition"). The Tender Offer Conditions are for the sole benefit of Parent and conditions Sub and may be asserted by Parent and Sub regardless of this Agreementthe circumstances giving rise to any such Tender Offer Condition and, subject to the preceding sentence, may be waived by Parent and Sub in whole or in part. Sub expressly reserves the right to modify the terms of the Offer, including, without limitation, except thatas provided below, to extend the Offer beyond any scheduled expiration date; PROVIDED, HOWEVER, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or add to the Offer Conditions, conditions set forth in Annex A or (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the Offer may not be extended beyond any scheduled or extended expiration date of the Offer unless any of the Tender Offer Conditions shall not be satisfied or waivedhave been satisfied; PROVIDED, until such time as such conditions are satisfied or waivedHOWEVER, (Bi) extend even if the Tender Offer Conditions have not been satisfied, the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of may not more than 10 business days be extended beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) three month anniversary of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent Offer and Sub shall file with (ii) if the SEC a Tender Offer Statement on Schedule 14D-1 (Conditions have been satisfied, then the "Schedule 14D-1") with respect Offer may be extended for an additional five business days so long as at the time of such extension, all conditions to the Offer, which shall contain an offer Sub's obligations to purchase and a related letter shares of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein Common Stock pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsare irrevocably waived.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Geon Co)
The Offer. (a) Subject to the provisions of this AgreementAgreement and as soon as practicable, as promptly as practicable but in no any event later than within five business days after the date of the first public announcement by Parent and the Company of this Agreement, Sub shall, and Parent Investor shall cause Sub to, commence commence, within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Offer shall be the 20th business day following the commencement of Exchange Act (as hereinafter defined), the Offer. The obligation of Sub to, and of Investor to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A and to the terms and conditions of this Agreement. The Offer shall initially expire 20 business days after the date of its commencement (subject to the "other provisions of this Section 1.1); provided, however, that unless this Agreement is terminated in accordance with Article X, in which case the Offer Conditions"(whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination, at the request of the Company, Investor and Sub shall extend the expiration date of the Offer from time to time to the earlier of (any i) the date on which Sub purchases or becomes obligated to purchase that number of which may be waived Shares that would satisfy the Minimum Condition (as defined in whole or in part by Sub in Exhibit A) and (ii) the date 60 business days after the date of its sole discretion, provided that, without commencement. Without the prior written consent of the Company, Sub shall not (i) waive the Minimum Condition Condition, (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (iii) reduce the number of Shares subject to the Offer, (iiiii) reduce the Offer Price, (iii) amend or add price per share of either class of the Shares to be paid pursuant to the Offer ConditionsOffer, (iv) except as provided in the next following sentence, extend the Offer, if all of the conditions of the Offer are satisfied or waived, or (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the OfferOffer at any time, and from time to time: (i) if at the then scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Sub's obligation to accept for payment and pay for the Shares shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived, ; (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission SEC (the "SEC"as hereinafter defined) or the its staff thereof applicable to the Offer or any period required by applicable law and Offer; (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than until 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after following the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect 10 business day period referred to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use condition in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.clause
Appears in 1 contract
Sources: Agreement and Plan of Merger (Prometheus Senior Quarters LLC)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with its terms and none of the provisions events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as promptly soon as practicable after the public announcement of the terms of this Agreement, but in no event later than five two business days after such public announcement. The Offer shall expire and terminate on the twentieth (20th) business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in order to satisfy any of the conditions set forth in Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (2) two business days after the date public announcement of the public announcement by Parent and the Company terms of this Agreement, Sub shallthe Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, and Parent the "Offer Documents"), which shall cause Sub to, commence contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer. The initial expiration date for , which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the 20th terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business day following the commencement of the Offerdays after such public announcement. The obligation of Sub Purchaser to accept for payment, and payment or pay for, for any Common Shares tendered pursuant to the Offer shall will be subject only to the conditions satisfaction of the condition set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without Annex I hereto. Without the prior written consent of the CompanyCOMPANY, Sub the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Exhibit AAnnex I)) and to the terms and , impose additional conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of Common Shares; provided that the Shares. Notwithstanding Purchaser expressly reserves the foregoing, Sub may, right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998COMPANY. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Sub shall, and Parent shall cause Sub to, Purchaser will accept for payment, payment and pay for, for all Common Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the COMPANY's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer. Each of the parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be fulfilled and avoid the occurrence of any event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender The Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer Document will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act provisions of 1934applicable federal securities laws and, as amended (on the "Exchange Act"), date filed with the SEC and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub the Purchaser with respect to information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Parent and the Company agree Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Sub the Purchaser further agree agrees to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Princess Beverly Coal Holding Co Inc)
The Offer. Provided that (a) Subject this Agreement shall not have been --------- terminated in accordance with Article VI hereof, (b) the Share Tender Agreements shall have been executed simultaneously with this Agreement and (c) the Board of Directors has taken action to eliminate any requirement that the provisions Salary Continuation Agreements Trust be fully funded for all current benefit obligations upon a change of this Agreementcontrol of the Company, and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as promptly as practicable practicable, but in no event later than five the fifth business days day after the date of the public announcement by Parent and of the Company execution of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation obligations of Sub to accept for payment, payment and promptly to pay for, for any Shares shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Tender Offer Conditions") (, any of which may be waived in whole or in part by Sub in its sole discretionParent and Sub; provided, provided -------- however, that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) ------- condition that there shall have been validly tendered and not validly withdrawn prior to the terms expiration of the Offer a number of shares of Common Stock which represent at least 70% of the total voting power of all shares of capital stock of the Company outstanding on a fully diluted basis (the "Minimum Condition"). The Tender Offer Conditions are for the sole benefit of Parent and conditions Sub and may be asserted by Parent and Sub regardless of this Agreementthe circumstances giving rise to any such Tender Offer Condition and, subject to the preceding sentence, may be waived by Parent and Sub in whole or in part. Sub expressly reserves the right to modify the terms of the Offer, including, without limitation, except thatas provided below, to extend the Offer beyond any scheduled expiration date; provided, however, without the consent of the Company, Company Sub shall not (i) reduce -------- ------- the number of Shares subject shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or add to the Offer Conditions, conditions set forth in Annex A or (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the Offer may not be extended beyond any scheduled or extended expiration date of the Offer unless any of the Tender Offer Conditions shall not be satisfied or waivedhave been satisfied; provided, until such time as such conditions are satisfied or waivedhowever, (Bi) extend even if the Tender Offer Conditions have not been -------- ------- satisfied, the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of may not more than 10 business days be extended beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) three month anniversary of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent Offer and Sub shall file with (ii) if the SEC a Tender Offer Statement on Schedule 14D-1 (Conditions have been satisfied, then the "Schedule 14D-1") with respect Offer may be extended for an additional five business days so long as at the time of such extension, all conditions to the Offer, which shall contain an offer Sub's obligations to purchase and a related letter shares of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein Common Stock pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsare irrevocably waived.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Osullivan Corp)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated pursuant to Article XI and nothing shall have occurred that, had the provisions Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of this Agreementthe conditions set forth in paragraph (b) of Annex I, as promptly as practicable but in no event later than five business days after the date of hereof and in any event within ten (10) Business Days after the public announcement by Parent and date hereof (or such later date as the Company of this Agreementparties may mutually agree in writing), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer. The initial expiration date for meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer shall be the 20th business day following the commencement to purchase any and all of the Offeroutstanding Shares at the Offer Price, less any withholding Taxes. The Merger Sub’s obligation of Sub to accept for payment, payment and pay for, for any Shares tendered pursuant to in the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Sub, represents at least a majority of the total number of Shares outstanding on a fully diluted basis (assuming conversion or exercise of all derivative securities or other rights to acquire Company Common Stock regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”) and to the other conditions set forth in Exhibit A (Annex I. Merger Sub expressly reserves the "Offer Conditions") (right to waive any of which may be waived the conditions to the Offer and to make any change in whole the terms of or in part by Sub in its sole discretion, conditions to the Offer; provided that, without the prior written consent of the Company, Sub shall not waive (i) the Minimum Condition may not be waived or amended and (as defined in Exhibit A)ii) and no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I in any manner materially adverse to the holders of Shares. The initial expiration date of the Offer shall be the twentieth (20th) Business Day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms and conditions of this Agreement, the “Expiration Date”). Sub expressly reserves Notwithstanding the right to modify the terms of the Offerforegoing, except that, (x) without the consent of the Company, Merger Sub shall not (i) reduce have the number of Shares subject right to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by applicable law Applicable Law and (Cy) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date of the Offer, Merger Sub shall, subject to the rights of the parties in Article XI, extend the Offer on for one or more occasions periods (each in the reasonable judgment of Merger Sub for an aggregate the minimum period of not more than 10 business days beyond time reasonably expected by the latest expiration date that would otherwise Merger Sub to be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all required to satisfy such conditions are reasonably capable but in any event not in excess of being satisfied, Sub shall extend the Offer from time to time twenty (20) Business Days each) until such conditions are satisfied or waived; provided, provided that in each case, (A) if, at the initial Expiration Date all of the conditions to the Offer, except for the Minimum Condition, are satisfied or have been waived, Merger Sub shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date for one or more additional periods not to exceed an aggregate of twenty (20) Business Days, and (B) in no event shall Merger Sub be required to extend the Offer beyond September 28, 1998the End Date. Subject to the terms and conditions Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Merger Sub shall not terminate or withdraw the Offer and prior to its Expiration Date, unless this AgreementAgreement is terminated in accordance with Article XI hereof. If this Agreement is terminated pursuant to Article XI, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer and shall not acquire Shares pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated pursuant to Article XI prior to the acquisition of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it to, accept for payment, payment and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”).
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits, the Offer to purchase Purchase and a related form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). The Company shall promptly upon request of Parent and Merger Sub agree provide Parent with all information concerning the Company that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent may be required by applicable securities laws 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 or warranty is made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agree agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect, and . Parent and Merger Sub further agree to take all steps necessary shall use their reasonable best efforts to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub agree to shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Schedule TO or Offer Documents promptly after the receipt of such commentsthose comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given).
(c) Parent Nothing in this Section 2.01 shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, affect any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offertermination rights in Article XI.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Purchaser shall, as soon as reasonably practical after the date hereof, commence within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder (the "EXCHANGE ACT"), the Offer but in any event within five business days (as such term is defined in Rule 14e-1 under the Exchange Act) from the date of public announcement of the execution hereof. The Offer will be subject only to the provisions satisfaction or waiver of this Agreementthe conditions set forth in Annex I hereto (the "OFFER CONDITIONS"), any of which conditions may be waived in the sole discretion of Purchaser (other than the Minimum Condition (as such term is defined in Annex I), which may only be waived with the consent of the Board of Directors of the Company). Assuming all of the conditions to consummation of the Offer are satisfied, Purchaser shall consummate the Offer as promptly as practicable but in no event later than five business days after possible.
(b) Parent and Purchaser covenant and agree that upon the date terms and subject to the conditions of this Agreement (including the Offer Conditions), Purchaser shall accept for payment all Shares, up to the Maximum Number of Shares, that are validly tendered on or prior to the expiration of the public announcement by Parent Offer and the Company of this Agreementnot timely withdrawn, Sub shallas soon as it is permitted to do so under applicable law, and Parent shall cause Sub topay for such Shares promptly thereafter. Purchaser may, commence at any time, assign to one or more corporations, which are direct or indirect wholly owned subsidiaries of Parent, the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement right to purchase all or any portion of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (Offer, but any of which may be waived in whole such transfer or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub assignment shall not waive relieve Purchaser and Parent of their obligations under the Minimum Condition (as defined Offer or prejudice the rights of tendering stockholders to receive payment for Shares properly tendered and accepted for payment in Exhibit A)) and to accordance with the terms and conditions of this Agreement. Sub expressly reserves .
(c) The Offer shall initially be scheduled to expire 20 business days following the right to modify the terms of the Offer, except commencement thereof; PROVIDED that, without the consent of the Companyunless this Agreement shall have been terminated pursuant to Section 8.1, Sub shall not (i) reduce the number of Shares Purchaser shall, subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentenceSection 1.1(e), extend the Offer, (v) change the form of consideration payable Offer from time to time in the Offer or (vi) amend any other term of event that, at a then-scheduled expiration date, the Offer Conditions have not been satisfied (other than incurable breaches of representations, warranties and covenants, PROVIDED that the determination of whether a breach is incurable is not in any manner adverse the sole discretion of Purchaser) each such extension not to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of exceed (unless otherwise consented to by the Company) the lesser of 10 additional business days or such fewer number of days that the Company and Parent reasonably believe are necessary to cause such Offer Condition to be satisfied; PROVIDED that, (A) under no circumstances shall any such extension be less than the minimum number of days required by the Exchange Act or the rules and regulations promulgated thereunder or by applicable law and PROVIDED further that Purchaser shall not be required to extend the Offer, if at the scheduled or extended expiration date of the Offer any more than 15 business days after making a public announcement that all of the Offer Conditions other than the Minimum Condition have been satisfied. Except as provided in Section 1.1(d) and Section 1.1(e), Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend terminate the Offer for any period required by any rulewithout purchasing Shares pursuant to the Offer. As soon as reasonably practical on the date the Offer is commenced, regulation, interpretation or position of Purchaser shall file with the Securities and Exchange Commission (the "SECCOMMISSION") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule SCHEDULE 14D-1 (together with all amendments and supplements thereto, the "Schedule SCHEDULE 14D-1") with respect to the Offer, which that shall comply in all material respects with the provisions of such Schedule and all applicable Federal securities laws, and shall contain an offer Offer to purchase Purchase and a forms of the related letter of transmittal and summary advertisement (such which Schedule 14D-1 14D-1, Offer to Purchase and the other documents included therein pursuant are referred to which the Offer will be made, together with any supplements or amendments thereto, herein collectively as the "Offer DocumentsTENDER OFFER DOCUMENTS"). Parent and Sub Purchaser agree that the Offer Documents Company and its counsel shall comply as be given an opportunity to form in all material respects review the Schedule 14D-1 before it is filed with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsCommission. Each of Parent, Sub Purchaser and the Company each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC Commission and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, holders of Shares in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to will provide the Company and its counsel with a copy of any comments Parent, Sub Parent or their counsel Purchaser may receive from the SEC Commission or its staff with 8 respect to the Tender Offer Documents promptly after following receipt thereof. Purchaser shall not, without the receipt prior written consent of such comments.
the Board of Directors of the Company, (ci) Parent shall provide decrease or cause to be provided to Sub on a timely basis change the funds necessary to accept for paymentform of the consideration payable in the Offer, and pay for, any (ii) reduce the number of Shares that Sub becomes obligated to accept for payment, and pay for, sought pursuant to the Offer, (iii) amend the Offer Conditions or impose additional conditions to the Offer, (iv) amend or change any term of the Offer or (v) waive the Minimum Condition.
(d) In the event that this Agreement has been terminated pursuant to Section 8.1, Purchaser shall, and Parent shall cause Purchaser to, promptly terminate the Offer without accepting any Shares for payment.
(e) If on September 13, 1999, either or both of the Minimum Condition or paragraph (b) of the Offer Conditions has not been satisfied, Purchaser shall, unless Parent and the Company otherwise agree, terminate the Offer, and the parties shall, subject to the terms and conditions hereof, seek to consummate the Merger in accordance with Section 2.5(c).
Appears in 1 contract
The Offer. (a) Subject Merger Sub commenced (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 on January 6, 2006. The Offer shall remain open until midnight (New York City time) on Thursday, February 16, 2006 (the "Initial Expiration Date"), unless extended pursuant to the provisions terms of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Merger Sub to accept for payment, payment and to pay for, for any Shares validly tendered pursuant 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 which, together with any shares of Common Stock then owned by Purchaser, Merger Sub, the Sponsors or any affiliates thereof, represents at least a majority of the shares of Common Stock outstanding on a fully-diluted basis (the "Minimum Condition"); and (ii) the other conditions set forth in Exhibit Annex A hereto. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the "Offer Conditionsto Purchase") (any of which may be waived that contains the terms set forth in whole or in part by Sub in its sole discretionthis Agreement, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined and only the other conditions set forth in Exhibit A)) and to the terms and conditions of this AgreementAnnex A hereto. Merger Sub expressly reserves the right to modify waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, except thathowever, without the consent of the Company, that Merger Sub shall not, and Purchaser shall cause Merger Sub not (i) reduce the number of Shares subject to the Offerto, (ii) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, extend the Offer beyond the Initial Expiration Date, 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 (vi) amend any other term or condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company (such consent to be authorized by the Board or a duly authorized committee thereof). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, prior to the termination of this Agreement, (Ai) extend the Offerif, if at the any scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Merger Sub's obligation to accept Shares for payment (including without limitation the Minimum Condition) shall not be satisfied or waived, until extend the Offer beyond the then applicable expiration date thereof for a time period reasonably necessary to permit such time as such conditions are condition to be satisfied in increments of not more than five business days each, or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer or any period required by applicable law and (C) 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 (A) Offer, or (Biii) of this sentenceif, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thenOffer, provided the number of shares of Common Stock that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares have been validly tendered and not withdrawn pursuant to the Offer, together with any shares of Common Stock then owned by Purchaser or Merger Sub satisfies the Minimum Condition but represents less than 90% of the shares of Common Stock outstanding, extend the Offer that (one or more times) for an aggregate additional period of not more than twenty (20) business days. Merger Sub becomes obligated to accept for paymentmay also, without the consent of the Company, and pay forshall if requested by the Company, pursuant to make available a subsequent offering period in accordance with Rule 14d-11 under the Offer as promptly as practicable after the expiration Exchange Act of the Offernot less than ten business days nor more than 20 business days.
(b) On the date of commencement of the OfferJanuary 6, Parent 2006, Purchaser and Merger Sub shall file filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO, which was amended on January 13, 2006 and January 26, 2006 (together with all amendments and supplements thereto, the "Schedule 14D-1TO") ), with respect to the Offer. Merger Sub shall amend and Purchaser shall cause Merger Sub to amend as promptly as reasonably practicable after the date hereof the Schedule TO to reflect the terms of the Offer, which shall contain an offer as set forth in this Agreement. The Schedule TO contained or incorporated by reference the Offer to purchase Purchase and a forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be madecollectively, together with any all amendments and supplements or amendments thereto, the "Offer Documents"). Parent Purchaser and Merger Sub agree that shall cause the Offer Documents shall comply to be disseminated to the holders of the Shares as and to form in all material respects with the Securities Exchange Act of 1934extent required by applicable federal securities laws. Purchaser and Merger Sub, as amended (on the "Exchange Act")one hand, and the rules and regulations promulgated thereunder and the Offer DocumentsCompany, on the date first publishedother hand, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to will cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any amendment or supplement to the Offer Documents prior to their filing Schedule TO before it is filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent In addition, Purchaser and Merger Sub agree to provide the Company and its counsel with any comments Parentcomments, whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and to consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with ARTICLE VII, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the provisions Shares at the Offer Price as promptly as reasonably practicable after the date of this Agreement, as promptly as practicable but in no event later than five business days seven (7) Business Days after the date initial public announcement of the execution of this Agreement (which initial public announcement by Parent shall occur no later than the first (1st) Business Day following execution and the Company delivery of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer). The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation of Sub Purchaser to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit Annex A (the "“Offer Conditions"”). The Offer shall initially expire at 9:00 a.m. (New York City time) on the date that is twenty-one (21) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act) (any 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”). The Offer shall be made by means of which may be waived in whole or in part by Sub in its sole discretion, provided that, without an offer to purchase (the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)“Offer to Purchase”) and to that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. Sub Parent and Purchaser expressly reserves reserve the right to modify waive, in whole or in part, any Offer Condition, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, except thathowever, without the consent of that unless otherwise provided by this Agreement or as previously approved in writing by the Company, Sub Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration to be paid in the Offer, (iii) reduce the maximum number of Shares subject to the Offer, (iiiv) reduce the Offer Price, (iii) amend or add impose conditions to the Offer Conditionsin addition to the conditions set forth in Annex A hereto or modify or change any Offer Condition in a manner adverse in any material respect, to any Company’s stockholders, (ivv) change, modify or waive the Minimum Condition, (vi) except as otherwise provided in the next sentencethis Section 1.1, extend or otherwise change the expiration date of the Offer, (vvii) change otherwise amend, modify or supplement any of the form of consideration payable in the Offer or (vi) amend any other term terms of the Offer in any a manner adverse in any material respect to any Company’s stockholders or (viii) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
(b) Notwithstanding the foregoing Section 1.1(a)(vi), Purchaser shall (i) if requested in writing by the Company at least one (1) Business Day prior to the holders of the Shares. Notwithstanding the foregoingapplicable Expiration Time, Sub may, without the consent of the Company, (A) extend the OfferOffer beyond the then-scheduled Expiration Time for periods of five (5) Business Days on each such occasion if any Offer Condition has not been satisfied or, to the extent permitted by this Agreement, waived, subject, however, to the parties’ respective rights to terminate this Agreement pursuant to ARTICLE VII; provided, that that the Company can only request two (2) such extensions if at the scheduled or extended expiration date of the Offer any of Condition that has not been satisfied is the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, Minimum Condition and (Bii) extend the Offer for (x) any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof or The NASDAQ Stock Market LLC (“NASDAQ”) applicable to the Offer or any period required by applicable law and (Cy) extend periods of up to five (5) Business Days per extension until any waiting period (and any extension thereof) applicable to 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all consummation of the Offer Conditions are not satisfied on under the HSR Act or any scheduled expiration date of the Offer 7 thenforeign antitrust or competition related Laws shall have expired or been terminated; provided, provided however, in each case, that all such conditions are reasonably capable of being satisfied, Sub in no event shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not Purchaser (1) be required to extend the Offer (A) beyond September 28March 18, 19982014 (the “Walk-Away Date”) or (B) at any time following the valid termination of this Agreement pursuant to ARTICLE VII and (2) be permitted to extend the Offer beyond the Walk-Away Date without the prior written consent of the Company.
(c) Notwithstanding the foregoing Section 1.1(a)(vi) and Section 1.1(b), Purchaser may, in its sole discretion, extend the Offer beyond the Initial Expiration Time for periods of five (5) Business Days on each such occasion; if, on or prior to any then-scheduled Expiration Time, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived, subject, however, to the parties’ respective rights to terminate this Agreement pursuant to ARTICLE VII, provided, however, that in no event shall Purchaser (1) be required to extend the Offer (A) beyond the Walk-Away Date or (B) at any time following the valid termination of this Agreement pursuant to ARTICLE VII.
(d) On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement. Subject Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer. The Offer Price shall, subject to any withholding of Taxes required under applicable Law, be net to the seller in cash, upon the terms and subject to the conditions of the Offer and Offer. The Company agrees that no Shares held by the Company will be tendered to Purchaser pursuant to the Offer. In the event that this AgreementAgreement is terminated pursuant to Section 7.1, Sub shall, Purchaser shall (and Parent shall cause Sub Purchaser to) promptly (and, accept for paymentin any event, within twenty-four (24) hours of such termination), irrevocably and pay for, all unconditionally terminate the Offer and shall not acquire any Shares validly tendered and not withdrawn pursuant to the Offer. If the Offer that Sub becomes obligated to accept for paymentis terminated or withdrawn by Purchaser, Purchaser shall promptly return, and pay forshall cause any depository acting on behalf of Purchaser to return, pursuant in accordance with applicable Law, all tendered Shares to the Offer as registered holders thereof.
(e) As promptly as practicable after the expiration of the Offer.
(b) On on the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer or incorporate by reference the Offer to purchase Purchase and a forms of the related letter of transmittal and transmittal, related summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which in respect of the Offer will be madeand all other ancillary Offer documents (collectively, together with any all amendments, supplements or amendments and exhibits thereto, the "“Offer Documents"”). The Company shall use commercially reasonable efforts to promptly provide Parent and Sub agree with all information concerning the Company that is required by the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference included in the Offer Documents. Each Parent and Purchaser agree to take all reasonable steps necessary to cause the Offer Documents to be disseminated to the holders of Parentthe Shares as and to the extent required by applicable federal securities Laws. Parent and Purchaser, Sub on the one hand, and the Company agree Company, on the other hand, shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall be or shall have become false or misleading in any material respect, and Parent and Sub further Purchaser agree to take all steps necessary to cause the Schedule 14D-1 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Company's stockholdersShares, in each case case, as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination and disseminated to the stockholders holders of the CompanyShares. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel with any comments Parentcomments, Sub whether written or oral, that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) , to consult with the Company and its counsel prior to responding to any such comments and to provide the Company with copies of all such responses, whether written or oral. Each of Parent and Purchaser shall provide respond promptly to any comments of the SEC or cause its staff with respect to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to Offer Documents or the Offer.
Appears in 1 contract
Sources: Merger Agreement (Verenium Corp)
The Offer. (a) Subject to the provisions of other terms hereof and provided that this AgreementAgreement shall not have been terminated in accordance with SECTION 6.01, the Company, as promptly as is practicable after the date hereof but in no any event not later than five business 30 days after the date hereof, shall commence (within the meaning of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 rules under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), such Act and the rules and regulations promulgated thereunder being referred to herein as the "EXCHANGE ACT")) and will pursue an exchange offer (the "OFFER") to acquire all of the issued and outstanding Old Notes on the basis that the exchanging holders of Old Notes shall share ratably, according to the principal amount of Old Notes exchanged by each such holder in relation to the aggregate principal amount of Old Notes exchanged by all holders of Old Notes tendering their Old Notes pursuant to the Offer, of (i) $35,000,000 principal amount of the Company's Senior Subordinated PIK Notes due 2007 (the "NEW NOTES") to be issued under an indenture to be in form and substance satisfactory to the Company and the Holders, and (ii) shares of the Company's capital stock (either common or convertible preferred stock having the designations and preferences agreed to among the Company and the Holders) (the "NEW STOCK")), in either case, entitling the noteholders participating in the Offer Documentsto 90% of the voting control and rights to distributions in respect of the Company. In connection with the Offer, the Company agrees to solicit consents (the "CONSENT SOLICITATION") to an amendment of the Indenture dated as of March 30, 1999 (the "OLD INDENTURE") by and among the Company, the guarantors named therein and State Street Bank and Trust Company, as trustee, to be in form and substance satisfactory to the Company and the Holders, waiving current defaults under, and substantially modifying the covenants and restrictions under, the Old Indenture (such amendment being the "INDENTURE AMENDMENT"). The Company shall not waive any condition to, or make any changes in the terms and conditions of, the Offer or the Plan (as defined below) without the unanimous consent of the Holders; PROVIDED, HOWEVER, the Offer may be extended by the Company to any date on or before June 30, 2002 (the "FINAL EXPIRATION DATE") if (x) immediately prior to the expiration of the Offer any condition to the Offer shall not be satisfied and (y) the Board of Directors of the Company (the "BOARD OF DIRECTORS") determines there is a reasonable basis to believe that such condition could be satisfied within such period; PROVIDED FURTHER that the Company shall extend the Offer at the request of the Holders from time to time to a date not later than the Final Expiration Date. Assuming the prior satisfaction or waiver of the conditions of the Offer and subject to the foregoing right to extend the Offer, the Company shall issue the New Notes and the New Stock in exchange for Old Notes tendered pursuant to the Offer as soon as practicable after the Company accepts Old Notes for exchange under the Offer (the "CONSUMMATION DATE"). The Offer shall be conducted in such a manner that the issuance of the New Notes and New Stock shall be exempt from registration under Section 4(2) of the Securities Act of 1933, as amended (the "SECURITIES ACT").
(b) As soon as practicable on the date first publishedof commencement of the Offer, sent or given the Company shall take such steps as are reasonably necessary to cause a Confidential Offering Memorandum and Consent Solicitation and a related Letter of Transmittal, each in a form customary for a transaction of the type contemplated hereunder, to be disseminated to the Company's stockholdersholders of Old Notes as and to the extent required by applicable federal securities laws (the Confidential Offering Memorandum and Consent Solicitation, Letter of Transmittal and any related summary advertisement, together with all amendments and supplements thereto, the "OFFER DOCUMENTS"), which Offer Documents shall not contain any untrue statement incorporate the material terms 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentsthis Agreement and other customary terms. Each of Parent, Sub The Holders and the Company agree shall correct promptly to correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and Parent and Sub further agree to the Company shall take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Old Notes, in each case as and to the extent required by applicable federal securities laws. The Company Holders and its their counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents prior to their filing the dissemination of such Offer Documents. The Company and the Holders shall cooperate with each other in the SEC or dissemination to the stockholders preparation of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentsDocuments.
(c) Parent Subject to the terms hereof, the Company shall provide or cause use commercially reasonable efforts to be provided to Sub on a timely basis complete the funds necessary to accept for payment, Offer and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant the Consent Solicitation in accordance with the terms hereof. Upon satisfaction of all conditions to the Offer, the Company shall complete the Offer and accept the Old Notes for exchange of New Notes and New Stock in accordance with the terms of the Offer and shall execute the Indenture Amendment, in each case as soon as reasonably practicable following the expiration of the Offer.
(d) Notwithstanding the foregoing, at any time prior to the Consummation Date (including after commencement of the Offer), the Company may elect to implement the Offer by means of a pre-negotiated Chapter 11 plan of reorganization filed under 11 U.S.C. Sections 101 et. seq. (the "BANKRUPTCY CODE") on terms materially identical to the Offer or as otherwise agreed to by the Holders and the Company (the "PLAN"). The Company and the Holders shall cooperate with each other in the preparation of any such Plan and the Holders and their counsel shall have the opportunity to review and comment on the Plan prior to its filing. The Holders shall approve such Plan prior to its filing by the Company. Without limiting the foregoing, the Plan will not be deemed to have terms materially identical to the Offer unless:
(i) indebtedness owed to the Company's senior bank lenders will either be (x) repaid in full in cash on the effective date of the Plan (the "EFFECTIVE DATE") or on such other terms as are acceptable to the senior bank lenders or (y) restructured on terms acceptable to the senior bank lenders, the Company and the Holders;
(ii) accounts payable which are due and owing to the trade creditors of the Company will be either (x) paid in full on the Effective Date or (y) restructured or compromised on terms acceptable to such creditors, the Company and the Holders;
(iii) the holders of Old Notes will receive their pro rata proportion of (x) New Stock of the Company, which stock shall be the only class of stock outstanding and shall entitle the holders to 90% of the voting rights and rights to distributions and (y) $35,000,000 original principal amount of New Notes to fully discharge the claims represented by the Old Notes (such New Stock and New Notes to contain such terms and entitlements as are acceptable to the Holders);
(iv) the amount of New Stock distributed to holders of common stock on the date of the confirmation of the Plan (the "CONFIRMATION DATE") represents 10% of the sum of the New Stock to be issued to the holders of Old Notes and such shareholders on the Effective Date;
(v) the management incentives are issued and reserved as contemplated by Section 5.02 hereof.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreementpracticable, Sub shall, and Parent shall cause Sub to, commence commence, within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Offer shall be Securities Exchange Act of 1934, as amended (together with the 20th business day following rules and regulations thereunder, the commencement of "Exchange Act"), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in the attached Exhibit A B (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, except that Sub shall not waive the Minimum Condition (as defined in Exhibit A)B) without the consent of the Company) and subject to the terms rights of Parent and conditions of Sub to terminate this AgreementAgreement as provided in Section 8.
1. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any other conditions to the Offer Conditionsother than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, Offer or (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 15 business days beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered at least 90% in each case subject to the right of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfiedParent, Sub shall extend or the Offer from time Company to time until such conditions are satisfied or waived, provided that Sub shall not be required terminate this Agreement pursuant to extend the Offer beyond September 28, 1998terms hereof. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for paymentOffer, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (the "Schedule 14D-1TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). , and Parent and Sub agree that shall cause to be disseminated the Offer Documents shall comply to holders of Shares as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 extent 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentsapplicable federal securities laws. Each of Parent, Sub and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions conditions of this Agreement, Merger Sub shall, as promptly as reasonably practicable but and in no event later than five business days after December 22, 2010, commence (within the date meaning of Rule 14d-2 under the public announcement by Parent and Securities Exchange Act of 1934, as amended (the Company “Exchange Act”)), the Offer. The obligations of this Agreement, Merger Sub shallto, and of Parent shall to cause Merger Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be are subject only to satisfaction of the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent A. The initial expiration date of the Company, Sub Offer shall not waive be 11:59 p.m. (New York City time) on the Minimum Condition date that is the later of (x) twenty (20) business days from the date on which the Offer was commenced (determined as defined provided in Exhibit A)Rule 14d-1(g)(3) under the Exchange Act) and (y) January 24, 2011 (such date, the initial “Expiration Date” and any expiration time and date established pursuant to an extension of the terms and conditions of this AgreementOffer as so extended, also an “Expiration Date”). Merger Sub expressly reserves the right to increase the Offer Price and to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend waive the Minimum Tender Condition or add to the Tender Offer ConditionsExtension Condition, (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Shares, (v) except as otherwise provided in the next sentencethis Section 1.1(a), extend the Offer, (vvi) change the form of consideration payable in the Offer or (vivii) otherwise amend any other term of or modify the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Merger Sub may, in its sole discretion, without the consent of the Company, (Ai) extend the OfferOffer for one or more consecutive increments of not more than ten (10) business days each, if at the any otherwise scheduled or extended expiration date Expiration Date of the Offer any of the Offer Conditions shall conditions to Merger Sub’s obligation to purchase Shares are not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer or any period required by applicable law (iii) make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11. In addition, at the request of the Company in its sole discretion, (i) if the Company’s board of directors has designated at least one party to be an Excluded Party, and (C) such party has not ceased to be an Excluded Party under this Agreement, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one single increment equal to that number of days such that the Expiration Date will fall on one or more occasions for an aggregate period of the 18th day following the initial Expiration Date or, if such day is not more than 10 a business days beyond day, on the latest expiration date that would otherwise be permitted under clause first business day thereafter (Asuch increment, the “EP Tender Offer Extension”) or (Bii) of this sentenceif there has been no EP Tender Offer Extension, if on such expiration date there shall not have been tendered at least 90% and the termination of the outstanding Shares. waiting period with respect to the Merger under the HSR Act has not yet occurred, then Merger Sub shall, and Parent and shall cause Merger Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 thento, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time up to time until two (2) times in nine day increments (each successive extension shall only be made if termination has not yet occurred) such conditions that if both extensions are satisfied or waivedmade, provided that Sub shall the Expiration Date would fall on the 18th day following the initial Expiration Date or, if such day is not be required to extend a business day, on the first business day thereafter (such increment, the “HSR Tender Offer beyond September 28Extension” and together with the EP Tender Offer Extension, 1998the “Tender Offer Extension”). Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, for all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the 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 that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject (i) Provided that Parent and Purchaser shall not have delivered (and been entitled to deliver) a notice of the Company’s breach with respect to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub Company’s obligations under Section 6.3 (unless all such breaches set forth therein shall have been cured) Purchaser shall, and Parent shall cause Sub toPurchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer“Exchange Act”)), not later than July 2, 2008 (provided that the Company shall be prepared to disseminate to its stockholders its Schedule 14d-9 and Schedule 14f-1 within such time period) the Offer to purchase all outstanding Shares at the Offer Price. The initial expiration date for the Offer shall be the 20th business day following the commencement obligations of the Offer. The obligation Purchaser (and of Sub Parent to cause Purchaser) to accept for payment, payment and to pay for, for any Shares validly tendered (and not withdrawn) pursuant to the Offer shall be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A (the "“Offer Conditions"”). The initial expiration date of the Offer shall be July 30, 2008 (the “Expiration Date”, unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, Section 1.1(a)(iii), in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire). Purchaser expressly reserves the right (but shall not be obligated) (at any of which may be waived in whole time or in part by Sub from time to time in its sole discretiondiscretion to waive any Offer Condition or modify or amend the terms of the Offer, provided except that, without the prior written consent of the Company, Sub Purchaser shall not (A) decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (iiD) reduce the Offer Price, (iii) amend or add to the Offer Conditionsconditions set forth on Exhibit A, (ivE) except as provided modify the conditions set forth on Exhibit A in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled Shares or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date in a manner that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) On the date of commencement delay consummation of the Offer, Parent and Sub shall file with (F) reduce the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to time period during which the Offer will be madeshall remain open, together or (G) extend the Expiration Date except as required or permitted by Section 1.1(a)(iii) . If, prior to the Purchase Time, this Agreement is terminated in accordance with any supplements or amendments theretoArticle VIII, Purchaser shall (notwithstanding clause (F) of the "Offer Documents"). Parent and Sub agree that previous sentence) promptly terminate the Offer Documents without accepting any Shares for payment and shall comply as to form in all material respects with return the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents Shares tendered promptly after the receipt of such commentstermination.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to Provided that none of the provisions of this Agreementevents set forth on Annex A hereto shall have occurred and be continuing, Purchaser shall commence the Offer as promptly as reasonably practicable but after the date hereof and in no event later more than five ten business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The initial expiration date for the Offer shall be the 20th business day following the commencement of the Offerhereof. The obligation of Sub Purchaser to accept for payment, and pay for, any payment Shares tendered pursuant to the Offer shall be are subject only to the satisfaction of each of the conditions set forth on Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretionOffer, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to make any other changes in the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer; PROVIDED, except thatHOWEVER, without the consent of the Company, Sub shall not that no change may be made that (i) reduce decreases the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration price per Share payable in the Offer (ii) reduces the maximum number of Shares to be purchased in the Offer or that imposes conditions to the Offer in addition to those set forth on Annex A hereto or (viiii) amend any other term otherwise changes the terms and conditions of the Offer in any a manner adverse to the holders of the SharesPublic Holders. Notwithstanding the foregoing, Sub Purchaser may, without the consent of the Company, extend the Offer (Ai) extend for a period of not more than ten business days beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if if, at the scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on if, as of such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if date, all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions Purchaser's obligations to accept for payment Shares are satisfied or waived, provided that Sub shall not be required to extend but the Offer beyond September 28, 1998. Subject to the terms and conditions number of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated Offer, together with the Shares owned by Purchaser or its affiliates equals 80% or more, but less than 90%, of outstanding Shares on a fully diluted basis. In addition to accept the foregoing, Parent and Purchaser may provide for paymenta "subsequent offering period" to the extent provided in Rule 14d-11 under the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"). 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, for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If Parent or Purchaser are unable to consummate the Offer on the scheduled expiration date due to the failure of any of the conditions set forth in Annex A to be satisfied or waived, Purchaser shall extend the Offer in increments of not less than five business days (at the discretion of Purchaser) until such date as promptly as practicable after is 45 days from the date of the initial commencement of the Offer; PROVIDED, HOWEVER, that Purchaser shall not be required to extend the Offer if any such condition is, in the reasonable judgment of the Purchaser, incapable of being satisfied prior to the expiration of such 45-day period. If the Offerpayment equal to the Per Share Amount in cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the 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.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser and Parent and Sub shall file with the SEC (i) a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "SCHEDULE TO") and (ii) together with the Company, a Rule 13e-3 Transaction Statement on Schedule 14D-113E-3 (together with all amendments and supplements thereto, the "SCHEDULE 13E-3") with respect to the Offer, Offer which shall be filed as a part of the Schedule TO. The Schedule TO and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and TO, the documents included therein pursuant to which Schedule 13E-3, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). Parent and Sub agree that the The Offer Documents shall comply as to form in all material respects with the Securities Exchange Act provisions of 1934applicable federal securities laws and Parent and Purchaser hereby represent and warrant to the Company that, as amended (on the "Exchange Act"), date filed with the SEC and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholdersPublic Holders, 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, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub Purchaser further agree agrees to take all steps necessary to cause the Schedule 14D-1 as so corrected Offer Documents to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents that shall have become false or misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO and the Schedule 13E-3, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser shall give the Special Committee and its counsel shall be given reasonable the opportunity to review and comment upon the Offer Documents Documents, including all amendments and supplements thereto, prior to their filing being filed with the SEC or dissemination to and shall give the stockholders of the Company. Parent and Sub agree to provide the Company Special Committee and its counsel the opportunity to review all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. In addition, Parent and Purchaser shall provide the Special Committee and its counsel with any comments or other communications that Parent, Sub Purchaser or their its counsel may receive from time to time from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such commentscomments or other communications and shall consult with the Special Committee and its counsel as to all material communications with the SEC and its staff, including any material meetings and telephone conferences relating to the Offer Documents.
(c) Parent and Purchaser shall provide or cause to be provided to Sub the Paying Agent (as defined in Section 3.08(a)) on a timely basis or prior to the expiration of the Offer funds necessary to accept make payment for payment, and pay for, any Shares Publicly Held shares that Sub Purchaser becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article VII, as promptly as practicable after the date of this Agreement but in no event later more than five business days fifteen (15) Business Days after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the public announcement by Parent meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and the Company conditions of this Agreement, upon the satisfaction of the Minimum Condition and the satisfaction or waiver by Merger Sub shallof the other conditions set forth in Annex I (collectively, the “Offer Conditions”) at any scheduled Expiration Date, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and promptly accept for payment (such time of acceptance for payment, commence the “Acceptance Time”), and promptly thereafter pay for, all Shares validly tendered and not properly withdrawn pursuant to the Offer. The initial expiration date for Company agrees that no Shares held by the Offer shall Company or any of its Subsidiaries (other than any such Shares held on behalf of third parties) will be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer.
(c) The Offer shall be subject only made by means of an offer to purchase (the conditions “Offer to Purchase”) in accordance with the terms set forth in Exhibit A (this Agreement, the "Minimum Condition and the other Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without . Without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (iA) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (vB) change the form of consideration payable in the Offer or Offer, (viC) amend any other term decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in any manner adverse addition to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the CompanyOffer Conditions, (AE) extend the Offer, if at the scheduled amend or extended expiration date of the Offer modify any of the Offer Conditions shall in a manner that adversely affects holders of Shares generally, (F) change the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act. The Offer may not be satisfied or waivedterminated prior to the Expiration Date, until such time as such conditions are satisfied or waivedunless this Agreement is terminated in accordance with Article VII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of shall expire at midnight (New York City time) on the Securities and Exchange Commission date that is twenty (the "SEC"20) or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the latest expiration date that would otherwise be permitted Exchange Act) following the commencement (within the meaning of Rule 14d-2 under clause (Athe Exchange Act) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, being referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows: (i) if, on the scheduled Expiration Date, the Minimum Condition has not been satisfied on or any scheduled expiration date of the other Offer 7 then, provided that all such conditions are reasonably capable of being Conditions has not been satisfied, or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall extend the Offer from time for one or more periods each consisting of not more than ten (10) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act), with the length of such periods to time until be determined by Parent, or such conditions are satisfied other number of business days as the parties may agree (subject to the right of Merger Sub to waive any Offer Condition (other than the Minimum Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with Article VII); and (ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law or waivedthe applicable rules, provided that regulations, interpretations or positions of the SEC or its staff or the NASDAQ. Merger Sub shall not be required to extend the Offer beyond September 28the End Date and shall not in any event extend the Offer beyond the End Date without the Company’s prior written consent.
(f) The Offer Price shall be equitably adjusted automatically to reflect the effect of any change in the fully diluted number of shares of capital stock of the Company as a result of any reclassification, 1998. Subject stock split (including a reverse stock split) or with a record date combination or exchange of shares, or any stock dividend or stock distribution occurring on or after the date hereof and at or prior to the terms Acceptance Time, and conditions of such adjustment to the Offer and Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be deemed to permit or authorize the Company to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(g) In the event that this Agreement is terminated in accordance with Article VII, Merger Sub shall, shall (and Parent shall cause Merger Sub to) promptly irrevocably and unconditionally terminate the Offer, accept for payment, and pay for, all not acquire any Shares validly tendered and not withdrawn pursuant to the Offer that and cause any depository acting on behalf of Merger Sub becomes obligated to accept for paymentreturn, and pay forin accordance with applicable Law, pursuant all tendered Shares to the Offer as promptly as practicable after the expiration of the Offerregistered holders thereof.
(bh) On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall shall: (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall the “Schedule TO”) that will contain an offer or incorporate by reference the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 ii) cause the Offer to Purchase and related documents, which shall be in customary form, to be disseminated to holders of Shares as and to the extent required by applicable U.S. federal securities Laws and the documents included therein pursuant to which rules and regulations of the Offer will be madeSEC thereunder (collectively, together with any supplements or amendments thereto, the "Offer Documents"“Securities Laws”). Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents shall Documents”) filed by either Parent or Merger Sub with the SEC to comply as to form in all material respects with applicable Securities Laws. The Company shall promptly furnish or otherwise make available to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 Laws 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer DocumentsDocuments as well as such other information concerning the Company and its stockholders that may be required in connection with any action contemplated by this Section 1.1(h), including communicating the Offer to the record and beneficial holders of the Shares. Subject to the right of the Company Board (or a committee thereof) to make a Company Adverse Recommendation Change pursuant to Section 5.3, the Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation. Each of Parent, Sub and the Company agree promptly party agrees to correct or supplement promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or such amendment or supplement shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule 14D-1 TO, as so corrected amended or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case case, as and to the extent required by applicable federal securities lawsthe Securities Laws. The Parent and Merger Sub shall give (x) the Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination and (y) due consideration to the stockholders of reasonable additions, deletions or changes suggested by the CompanyCompany and its counsel thereto. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents as promptly as reasonably practicable after the receipt of such comments. Subject to the last sentence of this paragraph, each of Parent and Merger Sub shall respond as promptly as reasonably practicable to any comments of the SEC or its staff with respect to the Offer Documents or the Offer. Parent and Merger Sub agree to give (x) the Company and its counsel reasonable opportunity to review any proposed written responses to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (y) due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and reasonable opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto.
(ci) Parent shall provide or cause to be provided to Merger Sub on a timely basis all of the funds necessary to accept for payment, and pay for, purchase any Shares that Merger Sub becomes obligated to accept for payment, and pay for, 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.
(j) For purposes of this Agreement and the Offer, unless otherwise mutually agreed to by the Company and Merger Sub, any Shares subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the Shares underlying such notices of guaranteed delivery are delivered to Merger Sub or to an agent of Merger Sub.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 10.1 and so long as none of the events or circumstances set forth in Annex A hereto shall have occurred and be continuing, as promptly as practicable but and in no any event later than within five business days after from the date of the public announcement by Parent and of the Company execution of this Agreement, Sub shall, and Parent shall cause Sub toSubsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the “Exchange Act”)), the Offer at a price equal to the Common Stock Price for each share of Company Common Stock. The obligation of Subsidiary to consummate the Offer. The , to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject solely to those conditions set forth in this Agreement and Annex A. It is agreed that the conditions to the Offer set forth in Annex A are for the benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any such condition (including any action or inaction by Subsidiary not in breach of this Agreement), and Subsidiary expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of the Company, Subsidiary shall not waive the Minimum Condition (as defined in Annex A) or the condition set forth in paragraph (g) of Annex A. In accordance with Rule 14e-1(a) promulgated under the Exchange Act, the initial expiration date for of the Offer shall be the 20th business day following the commencement of the Offer. The obligation of Sub to accept for paymentOffer (determined in accordance with Rule 14d-2 promulgated under the Exchange Act).
(b) Subsidiary expressly reserves the right, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided thatto modify and make changes to the terms and conditions of the Offer, provided, that without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not no modification or change may be made which (i) reduce decreases the number of Shares subject to the OfferCommon Stock Price (except as permitted by this Agreement), (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change changes the form of consideration payable in the Offer (other than by adding consideration), (iii) changes the Minimum Condition, (iv) decreases the maximum number of shares of Company Common Stock sought pursuant to the Offer, (v) changes the conditions to the Offer in a manner adverse to the Company or its shareholders or stock option or stock grant holders, or (vi) amend any other term of the Offer in any manner adverse imposes additional conditions to the holders of the SharesOffer. Notwithstanding the foregoing, Sub maySubsidiary may (but shall not be required under this Agreement or otherwise to), without the consent of the Company, (Ai) extend the OfferOffer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed ten business days at a time), if at the then-scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Subsidiary’s obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer or any period required by applicable law Offer, and (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than 10 ten business days beyond if the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have Minimum Condition has been tendered at least 90satisfied but less than 80% of the outstanding SharesCompany Common Stock has been validly tendered and not properly withdrawn. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Sub shallpromptly after expiration of the Offer, Subsidiary shall accept for payment and pay for, and Parent shall cause Sub to, Subsidiary to accept for payment, payment and pay for, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated Offer. In addition to accept the foregoing, Subsidiary may in its sole discretion (but shall not be required under this Agreement or otherwise to) provide for paymenta subsequent offering period pursuant to, and pay foron the terms required by, pursuant to Rule 14d-11 under the Offer as promptly as practicable after the expiration of the OfferExchange Act.
(bc) On the date of commencement of the Offer, Parent and Sub Subsidiary shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto and including the "exhibits thereto, the “Schedule 14D-1"TO”) with respect to the OfferOffer which will comply in all material respects with the provisions of applicable federal securities laws, which shall and will contain an the offer to purchase relating to the Offer and a forms of related letter letters of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "“Offer Documents"”). Parent and Sub agree that shall deliver copies of the proposed forms of the Offer Documents shall comply to the Company as to form far in advance of the commencement of the Offer and the filing of any amendments or supplements thereto as is reasonably practicable, but in all material respects with events far enough in advance to permit a reasonably expeditious review and comment by the Securities Exchange Act of 1934Company and its counsel. Parent shall provide the Company and its counsel in writing any comments that Subsidiary, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made by Parent or Sub their counsel may receive from the SEC or its staff with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsDocuments promptly after the receipt thereof. Each of Parentthe Company, Sub Parent and the Company agree Subsidiary shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub Subsidiary further agree to take all steps necessary to cause the Schedule 14D-1 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the shareholders of the Company's stockholders, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.
(cd) The parties understand and agree that the Common Stock Price has been calculated based upon the accuracy of the representation and warranty set forth in Section 5.2 and the Company’s compliance with the covenant in Section 7.2(a)(v)(B) and that, in the event the number of outstanding shares of Company Common Stock or the number of shares of Company Common Stock issuable upon the exercise or conversion of, or subject to, options, grants, warrants, securities or other agreements exceeds the amounts specifically set forth in Section 5.2 (including without limitation as a result of any stock split, stock dividend, including any dividend or distribution of securities convertible into shares of the Company Common Stock, recapitalization, or other like change occurring after the date of this Agreement) or the number of Options and exercise prices therefore set forth in Schedule 5.2 of the Company Disclosure Schedule are inaccurately stated, in any manner adverse to Parent or Subsidiary, the Common Stock Price shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant appropriately adjusted downward pro rata but only to the Offer.extent required so that the aggregate consideration payable by Subsidiary hereunder shall not be increased solely by reason of such inaccuracy, except that in the event of inaccuracies in the representations in
Appears in 1 contract
Sources: Merger Agreement (Hunt Corp)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this AgreementAugust 16, 1995, Sub shall, and Parent shall cause Sub to, commence commence, within the Offer. The initial expiration date for meaning of Rule 14d-2 under the Offer shall be the 20th business day following the commencement of Exchange Act (as hereinafter defined), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (and to the "terms and conditions of this Agreement. The initial expiration date of the Offer Conditions") (any of which may shall be waived in whole or in part by Sub in its sole discretionSeptember 15, provided that, without 1995. Without the prior written consent of the Company, Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (iii) reduce the number of Shares shares of Common Stock subject to the Offer, (iiiii) reduce the Offer Price, (iii) amend or add price per share of Common Stock to be paid pursuant to the Offer ConditionsOffer, (iv) except as provided in the next sentence, extend the OfferOffer if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer Offer, or (vi) amend amend, add or waive any other term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to that would adversely affect the holders of the SharesCompany or its stockholders. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) extend the Offer, Offer (i) if at the then scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Sub's obligation to accept for payment and pay for shares of Common Stock shall not be have been satisfied or waived, until such time as the later of (x) any period during which the Offer may remain open pursuant to clauses (ii)-(v) below, and (y) the fifth business day after the date Sub reasonably believes to be the earliest date on which such conditions are satisfied or waived, may be satisfied; (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission SEC (the "SEC"as hereinafter defined) or the its staff thereof applicable to the Offer; (iii) if the condition in clause (f) of Exhibit A referring to a 10 business day period shall not have been satisfied, for up to three business days after the scheduled expiration date of such period; (iv) if all Offer conditions are satisfied or any waived but the number of shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, for an aggregate period required by applicable law of not more than 15 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i), (ii) or (iii) of this sentence; and (Cv) extend if all Offer conditions are satisfied or waived but the Offer on one or more occasions number of shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, for an aggregate period of not more than 10 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clause (Ai), (ii), (iii) or (Biv) of this sentence (provided that Sub shall acknowledge that, except in the case of an occurrence of an event that would cause the condition contained in Section 8.1(b) not to be satisfied, all the Offer 7 conditions shall be deemed to be waived and all shares of Common Stock which are validly tendered and not withdrawn upon the expiration of such extended period will be accepted and purchased. In addition to the right of Sub to extend the Offer pursuant to the previous sentence, if Sub shall have the right to extend the Offer until five business days from the date on such expiration date there shall not which Sub receives all certificates required to have been tendered at least 90% of delivered to it pursuant to Section 7.13 on or prior to the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date in effect prior to the extension permitted by this sentence. The obligation of the Company to provide certificates pursuant to Section 7.13 and the right of Parent to terminate this Agreement pursuant to Section 9.3(c)(ii) shall remain in effect until Sub acquires shares of Common Stock pursuant to the Offer 7 then, provided that all such conditions are reasonably capable without affecting the right of being satisfied, Sub shall to extend the Offer from time pursuant to time until such clause (iv) above; provided, however, that if Sub exercises its right to extend the Offer pursuant to clause (v) above, the Company's obligation to provide certificates pursuant to Section 7.13 shall cease and the Parent shall have no further right to terminate this Agreement pursuant to Section 9.1(c)(ii). So long as this Agreement is in effect and the Offer conditions are have not been satisfied or waived, provided that Sub shall, and Parent shall not be required to extend cause Sub to, cause the Offer beyond September 28, 1998not to expire. Subject to the terms and conditions of the Offer and this the Agreement, Sub shall, and Parent shall cause Sub to, accept pay for payment, and pay for, all Shares shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent The Company and Sub agree that its counsel shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC. The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act"), and on the rules date filed with the SEC and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company'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, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agree agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments.material
(c) Prior to or concurrently with the expiration of the Offer, Parent shall provide or cause to be provided to Sub on a timely basis all of the funds necessary to accept for payment, and pay for, purchase any Shares shares of Common Stock that Sub becomes obligated to accept for payment, and pay for, purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Humana Inc)
The Offer. (a) Subject to Not later than the provisions first business day after the date of this Agreement, Acquiror, Acquisition Subsidiary and ▇▇▇▇▇ will make a public announcement of the Offer.
(b) Provided that this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than five ten (10) business days after the date of the initial public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, Acquisition Subsidiary’s intention to commence the Offer. The initial expiration date for the Offer shall , which announcement will be the 20th business day following the commencement of the Offermade on November 16, 2007. The obligation of Sub Acquisition Subsidiary to accept for payment, payment and pay for, any for ▇▇▇▇▇ Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A hereto, including the condition that a number of ▇▇▇▇▇ Shares representing that number of ▇▇▇▇▇ Shares which would equal more than fifty percent (50%) of the ▇▇▇▇▇ Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer, and not withdrawn (the "Offer Conditions") (“Minimum Condition”). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of which may be waived in whole or in part by Sub in its sole discretionthe Offer; provided, provided however, that, without the prior written consent of the Company▇▇▇▇▇, Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall Acquisition Subsidiary will not (i) reduce decrease the number of Shares subject to the OfferPer Share Amount, (ii) reduce the Offer Price, (iii) amend or add maximum number of ▇▇▇▇▇ Shares to the Offer Conditions, (iv) except as provided be purchased in the next sentence, extend the Offer, (viii) change the form of the consideration payable in the Offer Offer, (iv) add to, modify or (vi) amend any other term of supplement the conditions to the Offer set forth in Annex A hereto in any manner adverse to the holders of the ▇▇▇▇▇ Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Av) extend the Offer, if at the scheduled or extended expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in the terms or conditions of the Offer Conditions shall not which is adverse to the holders of ▇▇▇▇▇ Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be satisfied or waivednet to each seller in cash, until such time as such upon the terms and subject to the conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) 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 (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998Offer. Subject to the terms and conditions of the Offer and this AgreementOffer, Sub Acquisition Subsidiary shall, and Parent Acquiror shall cause Sub Acquisition Subsidiary to, accept for paymentpayment and pay, and pay foras promptly as practicable after expiration of the Offer, for all ▇▇▇▇▇ Shares validly tendered and not withdrawn pursuant to (the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer“Acceptance Time”).
(bc) On the date of commencement of the Offer, Parent Acquiror and Sub Acquisition Subsidiary shall file with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule 14D-1 TO, including all exhibits thereto (together with all amendments and supplements thereto, the "“Schedule 14D-1") TO”), with respect to the Offer, which . The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and a the forms of related letter letters of transmittal and summary advertisement (such the Schedule 14D-1 and the documents included therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). Parent and Sub agree that the The Offer Documents shall will comply as to form in all material respects with the Securities Exchange Act provisions of 1934applicable federal securities laws and, as amended (on the "Exchange Act"), date filed with the SEC and the rules and regulations promulgated thereunder and the Offer Documents, 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 or warranty is made in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically ▇▇▇▇▇ for inclusion or Agreement and Plan of Merger incorporation by reference in into the Offer Documents. Each of Parent▇▇▇▇▇, Sub Acquiror and the Company agree Acquisition Subsidiary shall correct promptly to correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect, and Parent Acquiror and Sub further agree to Acquisition Subsidiary shall take all steps necessary to cause the Schedule 14D-1 TO, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to the Company's stockholdersholders of ▇▇▇▇▇ Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company ▇▇▇▇▇ and its counsel shall be given the reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent Acquiror and Sub agree to Acquisition Subsidiary shall provide the Company ▇▇▇▇▇ and its counsel with a copy of, and shall consult with ▇▇▇▇▇ regarding any comments Parenttelephonic notification of any oral comments, Sub and shall consult with ▇▇▇▇▇ before responding to any written comments, in each case that Acquiror or their counsel Acquisition Subsidiary may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such commentscomments and (ii) take all other actions necessary to resolve the issues raised therein.
(cd) Parent Subject to the terms and conditions hereof, the Offer shall provide remain open until midnight, Eastern Time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of ▇▇▇▇▇, Acquisition Subsidiary may (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions set forth in Annex A shall not have been satisfied or cause waived, for one (1) or more periods of not more than ten (10) business days each, until such time as such conditions are satisfied or waived, not to be provided to Sub on a timely basis exceed thirty (30) business days in the funds necessary to accept aggregate, (ii) extend the Offer for paymentone (1) or more periods if required by any rule, and pay forregulation, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant interpretation or position of the SEC or the staff thereof applicable to the Offer, not more than the period or periods required by such rule, regulation, interpretation or position, or (iii) extend the Offer for one (1) or more periods for an aggregate period of not more than twenty (20) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of ▇▇▇▇▇ Shares which would equal more than ninety percent (90%) of the issued and outstanding ▇▇▇▇▇ Shares on a fully-diluted basis; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, without the consent of ▇▇▇▇▇, extend the offer in accordance with Rule 14d-11 of the Exchange Act. In addition, the Per Share Amount may be increased and the Offer may be extended to the extent required by Law in connection with such increase, in each case without the consent of ▇▇▇▇▇. If on the initial scheduled expiration date of the Offer or any extension thereof, any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by ▇▇▇▇▇, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and Acquisition Subsidiary each agree that if any of the conditions set forth in paragraphs (a) or (b) of Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any expiration date of the Offer, then Acquisition Subsidiary shall, and Acquiror shall, if requested to do so by ▇▇▇▇▇, cause Acquisition Subsidiary to, extend the Offer one time for a period of up to ten (10) business days.
Appears in 1 contract
Sources: Merger Agreement (Coley Pharmaceutical Group, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence amend the Offer. The initial expiration date for Existing Offer to reflect the Offer shall be Price and to make such other amendments as are necessary to conform the 20th business day following the commencement of the OfferExisting Offer to this Agreement. The obligation of Sub to, and of Parent to cause Sub to, amend the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") and to the terms and conditions of this Agreement, including the Merger Option (as defined herein) (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, except that Sub shall not waive the Minimum Condition (as defined in Exhibit A) without the consent of the Company)) and to the terms and conditions of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add impose any other conditions to the Offer Conditionsother than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, Offer or (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in any manner adverse to the holders of the SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (Ai) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (Ciii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 15 business days beyond the latest expiration date that would otherwise be permitted under clause (Ai) or (Bii) of this sentence, if on such expiration date there shall not have been tendered at least 90% in each case subject to the right of Parent, Sub or the outstanding SharesCompany to terminate this Agreement pursuant to the terms hereof. Parent and Sub agree that if all of the Offer Conditions are not satisfied on at any scheduled expiration date of the Offer 7 thenOffer, provided that all such the Minimum Condition or the HSR Condition (as defined in Exhibit A) shall not have been satisfied and none of the conditions are reasonably capable set forth in paragraphs (a), (b), (c), (d), (e), (f), (g) or (h) of being satisfiedExhibit A shall exist, at therequest of the Company (confirmed in writing), Sub shall extend the Offer from time to time until such conditions are satisfied time, subject to the right of Parent, Sub or waived, provided that Sub shall not be required the Company to extend terminate this Agreement pursuant to the Offer beyond September 28, 1998terms hereof. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer.
(b) On the date of commencement amendment of the Existing Offer, Parent and Sub shall file with the SEC a an amendment (the "14D-1 Amendment") to its Tender Offer Statement on Schedule 14D-1 dated as of October 3, 1997 (as amended from time to time, the "Schedule 14D-1") with respect to the Offer, which shall contain an such amendments and supplements to the offer to purchase and a related letter of transmittal and summary advertisement as Parent, in its reasonable judgment, shall deem necessary (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). , and Parent and Sub agree that shall cause to be disseminated the Offer Documents shall comply to holders of Shares as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, 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 extent 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 or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentsapplicable Federal securities laws. Each of Parent, Sub and the Company agree each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with 8 respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Wallace Computer Services Inc)