The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period. (b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Ixia), Merger Agreement (Catapult Communications Corp)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had On the date of commencement of the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined belowExchange Act), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the OfferGuarantor, Parent and Merger Subsidiary shall file 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 shall include incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary term sheet required thereby and, as exhibitsadvertisement and such other customary documents included therein (the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary documents pursuant to which the Offer documents (collectively, together with any amendments or supplements theretois being made, the “Offer Documents”).
(b) Subject to the conditions of this Agreement, as promptly as practicable but in no event later than three Business Days after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, amend the offer to purchase (as so amended and supplemented, the “Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent Purchase”) and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the other Offer Documents. Each , in each case in accordance with the terms of Parentthis Agreement, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected amended and supplemented, the “Amended Offer Documents”), including to be filed reflect the conditions set forth in Annex I (the “Offer Conditions”) and file with the SEC and the Amended Offer Documents.
(c) Merger Sub expressly reserves the right to (i) increase the Offer Documents as so corrected to be disseminated to holders Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of Sharesthe Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each casecase subject to extending the Offer as required by applicable Law; provided, as however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (A) decrease the Offer Price, (B) 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 Conditions, (E) amend or modify any of the Offer Conditions or any of the terms of the Offer in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability 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, at its sole discretion prior to the expiration of the Offer, 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 U.S. federal securities lawsLaw, 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 any of the other Offer Conditions have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, 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 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 (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 otherwise 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, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange LLC (the “NYSE”) or its staff, in each case applicable to the Offer, provided that Merger Sub shall not be required to extend the Offer beyond the 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, that 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, (i) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, (ii) not acquire any Shares pursuant to the Offer and (iii) cause any depository acting on behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) The Company shall cooperate fully in the preparation of the Amended Offer Documents to reflect the terms of this Agreement and the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Amended Offer Documents each time before any such document is they are filed with the SEC, and . Parent and Merger Subsidiary Sub agree that they shall give reasonable cause the Amended Offer Documents and good faith consideration all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC to any comments made comply in all material respects with the Exchange Act and the rules and regulations 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 Company Exchange Act to be set forth in the Amended Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the Shares. Each of Parent and Merger Sub shall use its counsel (it being understood that reasonable best efforts to resolve all SEC comments with respect to the Amended Offer Documents as promptly as reasonably practicable after receipt thereof. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Amended Offer Documents which shall have become false or misleading. Each of Parent and its counsel Merger Sub shall provide any comments thereon as soon as reasonably practicable). Parent practicable notify the Company of the receipt of any comments from the SEC with respect to the Amended Offer Documents and Merger Subsidiary any request by the SEC for any amendment to the Amended Offer Documents or for additional information and shall provide the Company with copies of all such comments and its counsel with correspondence. Prior to filing or mailing the Amended Offer Documents (ior any amendment or supplement thereto) or responding to any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from of the SEC (or its the staff of the SEC) with respect to thereto, each of Parent and Merger Sub shall provide the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) Company a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments review and to provide propose comments on that such document or response (to which and shall, in good faith, consider and incorporate the reasonable and good faith consideration shall be given, it being understood that comments of the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Company.
Appears in 2 contracts
Sources: Merger Agreement (Reckitt Benckiser Group PLC), Merger Agreement (Schiff Nutrition International, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8, and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any that all of the conditions set forth in clauses 2(a), (b), (c), (d), (g), (h) and (i) of Annex II shall then be satisfied (in the case of clause 2(d), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived by Parent or Purchaser, as promptly as practicable after the date hereof and of this Agreement but in any no event within more than ten (10) Business Days business days after the date hereofof this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer Offer.
(b) Subject to purchase any the terms and all conditions of this Agreement, including the prior satisfaction of the outstanding Shares at Minimum Condition and the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms satisfaction or waiver by Purchaser of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary I (collectively, the “Offer Conditions”), after the Expiration Date, as herein defined, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn 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, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (iA) decrease the Minimum Condition may not be waived and Offer Price, (iiB) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases (C) decrease the Offer Price or the maximum number of Shares sought to be purchased in the Offer, imposes (D) impose conditions to the Offer in addition to those set forth in Annex I the Offer Conditions, (E) amend or modifies the conditions set forth in Annex I, or amends modify any other term of the Offer Conditions in any a manner adverse to the that adversely affects holders of Shares generally, (F) change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in the reasonable judgment of the Companya manner other than as required or permitted by this Agreement. The initial expiration date of Offer may not be terminated prior to the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined Expiration Date, unless this Agreement is terminated in accordance with Rule 14d-1(g)(3Section 8.
(d) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (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”). Notwithstanding .
(e) The Offer shall be extended from time to time as follows:
(1) If on the foregoingscheduled Expiration Date, (x) Merger Subsidiary the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied, or waived by Parent or Purchaser if permitted hereunder, then Purchaser shall extend the Offer for one or more periods of not more than five (5) business days each (the length of such periods to be determined by Parent) or such other number of business days as the parties may agree (subject to the right of Purchaser 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 Section 8 of this Agreement, other than pursuant to Section 8.1(b)); and
(2) Purchaser shall extend the Offer for the minimum period required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the staff thereof applicable 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 at or prior to the Offer or any period required by Applicable Law Acceptance Time, and (y) if any condition such adjustment to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject Price shall provide to the rights holders of Company Common Stock the parties same economic effect as contemplated by this Agreement prior to such action; provided that nothing in Article 11, extend this Section 1.1(f) shall be construed to permit the Offer for one or more periods (each in Company to take any action with respect to its securities that is prohibited by the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination terms of this Agreement. If upon .
(g) Purchaser may (and the acceptance Offer Documents may reserve the right of Purchaser to) provide for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”within the meaning of Rule 14d-11 promulgated under the Exchange Act) in accordance compliance with Rule 14d-11 of under the 1934 Exchange Act of not less than three (3) nor more than ten twenty (1020) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless (for this Agreement is terminated purpose calculated in accordance with Article 11 hereof. Subject to Rule 14d-1(g)(3) under 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after Exchange Act) immediately following the expiration of the Offer. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Purchaser to, and Purchaser shall, accept and pay for all Shares (i) validly tendered during any such subsequent offering period in compliance with Rule 14e-1(c) under the Exchange Act.
(h) In the event that this Agreement is terminated pursuant to the terms hereof, 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, shall not withdrawn acquire any Shares pursuant to the Offer (and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered Shares to the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodregistered holders thereof.
(bi) On As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary shall Purchaser shall
(i) file 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 shall include the summary term sheet required thereby and, as exhibits, will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (ii) cause the Offer to Purchase and other appropriate ancillary Offer related documents (collectivelyto be disseminated to holders of Shares. Parent and Purchaser agree that they shall cause the Schedule TO and all exhibits, together with any amendments or supplements thereto, thereto (which together constitute the “Offer Documents”), ) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent rules and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documentsregulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to 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 Subsidiary shall further agrees to use all reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Corporations and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.1(i) including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser shall respond promptly to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)of the SEC or its staff with respect to the Offer Documents or the Offer.
(j) Without limiting the generality of Section 9.12, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement. Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective controlled Affiliates shall, tender any Shares held by them into the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Amgen Inc), Merger Agreement (Onyx Pharmaceuticals Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and no event shall have occurred and be continuing that, had no circumstance shall exist which would result in a failure to satisfy the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions condition set forth in clause (ii)(a) of Annex IA hereto, Purchaser shall commence the Offer as promptly soon as practicable after the date hereof hereof, and in any event within ten (10) Business Days after eight business days from the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) obligation of Purchaser to the condition that there shall be accept for payment and pay for Shares validly tendered and not withdrawn shall be subject only to the satisfaction or waiver by Purchaser of the conditions or events set forth in accordance with Annex A hereto (the "Offer Conditions"). Purchaser expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes in the terms and conditions of the Offer; provided that, prior unless previously approved by the Company in writing, (i) Purchaser may not waive the Minimum Condition (as defined in Annex A) or any of clauses (ii)(a), (e) or (f) of the Offer Conditions, (ii) Purchaser may not extend the expiration date of the Offer beyond the initial expiration date of the Offer except (A) as required by applicable law, (B) that if any condition to the Expiration Offer has not been satisfied or waived (other than as a result of the failure by Parent or Purchaser to perform any of its obligations under this Agreement), Purchaser may, in its sole discretion, extend the expiration date of the Offer for one or more periods (not in excess of 10 business days each) but in no event later than the Outside Date (as defined below) or (C) as provided hereafter in this Section 1.1(a), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (iiiii) no change may be made that changes which decreases the price per Share payable in the Offer, (iv) there shall be no change to the form of consideration to be paid, decreases payable in the Offer Price or (other than by adding consideration), (v) there shall be no reduction in the maximum number of Shares sought to be purchased in the Offer, imposes conditions Offer and (vi) there shall be no imposition of any condition to the Offer in addition to those set forth herein, there shall be no modification or amendment to the Offer Conditions and the Offer shall not be otherwise modified or amended, in Annex I each case, in a manner which is adverse to holders of the Shares. On the terms and subject to the prior satisfaction or modifies the conditions set forth in Annex I, or amends any other term waiver of the Offer in Conditions, Parent shall provide funds to Purchaser and Purchaser shall accept for payment and pay for Shares as soon as it is permitted to do so under applicable law; provided that (i) at each scheduled expiration date of the Offer, if any manner adverse to of the holders of Shares in Offer Conditions shall not be satisfied or waived, Purchaser shall, at the reasonable judgment request of the Company. The initial , extend the expiration date of the Offer shall be for one or more periods (not in excess of 10 business days each) but in no event later than the twentieth Outside Date and (20thii) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission ("the SEC") or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to Offer. The initial expiration date of the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to shall be 20 business days from the rights commencement of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodapplicable law.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Reh Mergersub Inc), Merger Agreement (Reh Mergersub Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 7.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) but in no event later than five business days after the initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "Minimum Condition") that there at least a majority of those then outstanding Shares of each class not owned beneficially and of record by Purchaser (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights) shall be have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number Offer and also shall be subject to the satisfaction of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived without the prior approval of the Company and (ii) that no change may be made that which (v) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, (w) which decreases the price per Share payable in the Offer, (x) which reduces the maximum number of Shares to be purchased in the Offer, (y) which imposes conditions to the Offer in addition to those set forth in Annex I A hereto or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner (z) which is otherwise adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth Company or its stockholders (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to other than Purchaser and in accordance with the terms of this Agreement, the “Expiration Date”its affiliates). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following the commencement of the Offer) if, at the scheduled expiration date of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 20 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or any period required by Applicable Law (ii) of this sentence, if as of such date, all of the conditions to Purchaser's obligations to accept for payment, and (y) if any condition to pay for, the Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights less than 90 percent of each class of the parties in Article 11outstanding Shares on a fully diluted basis; provided, however, that if any condition remains unsatisfied on the initial scheduled expiration date of the Offer, at the request of the Company, the Purchaser shall extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of from time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) time until five business days each) until after such conditions are condition is satisfied or waived; provided, in each case, (provided that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond the termination 35 calendar days after such initial scheduled expiration date). The Per Share Amount shall, subject to applicable withholding of this Agreement. If upon the acceptance for payment oftaxes, and payment for, all Shares validly tendered and not withdrawn pursuant be net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Subsidiary shall, and Parent Purchaser shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay forpay, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodwithdrawn.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1") that with respect to the Offer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and the other Transaction. The Schedule 14D-1 and the Schedule 13E-3 shall include contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary term sheet required thereby andadvertisement (the Schedule 14D-1, as exhibitsthe Schedule 13E-3, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), . Purchaser shall provide the Company and shall cause its counsel a reasonable opportunity to review and comment on the Offer Documents prior to be disseminated to all holders of Sharesthe filing and/or dissemination thereof. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Schedule TO or the Offer Documents if and to the extent that such information which shall have become (or shall become known to be) false or misleading in any material respect. Parent misleading, and Merger Subsidiary shall Purchaser and the Company further agree to take all steps necessary to cause the Schedule TO 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Concord Merger Corp), Merger Agreement (Concord Merger Corp)
The Offer. (a) Provided that nothing (i) none of the events or circumstances set forth in clauses (i) through (vi) of Annex A hereto shall have occurred and be continuing that, had existing (and shall not have been waived by Parent) and (ii) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date Company shall have complied with its applicable obligations under Section 1.2 hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase any and all as promptly as reasonably practicable after the date hereof, but in no event later than ten (10) business days after the date hereof. For the avoidance of the outstanding Shares at doubt, Parent may consummate the Offer Price. through Acquisition, its direct wholly owned subsidiary.
(b) The obligation of Parent to accept for exchange, and to exchange the Offer Consideration for, Shares tendered pursuant to the Offer shall be subject only (1i) to the satisfaction of the condition that (the “Minimum Condition”) that, at the expiration of the Offer, there shall be validly tendered and not withdrawn in accordance with the terms of the OfferOffer (other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not withdrawn that number of Shares which represents not less than sixty-six and seven-tenths percent (66.7%) of (A) Shares then outstanding, prior plus (B) shares of Company Common Stock which the Company may be required to the Expiration Date issue pursuant to Company Stock Options (as defined below), a number of Shares that, together with ) outstanding on the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority date hereof which do not terminate upon consummation of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) Offer under Company Plans or otherwise (the “Minimum ConditionFully-Diluted Shares”), ) and (2ii) to the satisfaction (or waiver by Parent) of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Parent expressly reserves the right to waive any of such conditions (other than the Minimum Condition and the conditions set forth in clauses (c), (d) and (e) of the second paragraph of Annex A hereto and clauses (i)(A) and (ii) (solely to the extent such clause relates to clause (i)(A)) of Annex A hereto), to increase the consideration per Share payable in the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, however, that no change may be made without the prior written consent of the CompanyCompany which decreases the Exchange Ratio for the Offer from that set forth herein, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paidpaid in the Offer, decreases reduces the Offer Price or the maximum number of Shares sought to be acquired 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 IA hereto, waives the Minimum Condition, modifies or amends any of the conditions set forth in Annex A hereto (although such conditions may be waived as provided herein), makes other term changes in the terms of the Offer that are in any manner adverse to the holders of Shares in or, except as provided below, extends the reasonable judgment of the Company. The initial expiration date of the Offer. Notwithstanding the foregoing, Parent may (A) extend the Offer beyond the initial scheduled expiration date, which shall be the twentieth twenty (20th20) business day after days following the date of commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date“Initial Expiration Date” or, or such subsequent date to which the expiration of the Offer is as extended pursuant to and in accordance with the terms of this Agreementhereto, the “Expiration Date”). Notwithstanding , or any subsequent scheduled expiration date, if, at the foregoingscheduled expiration of the Offer, any of the conditions to Parent’s obligation to accept for exchange, and to exchange the Offer Consideration 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 Section 7.1 and (xB) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. Each extension of the Offer pursuant to clause (A) of the preceding sentence shall not exceed the lesser of ten business days (or such longer period as the Company and Parent may agree in writing in any period required by Applicable Law particular instance) or such fewer number of days that Parent reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied; provided, that no such extension or extensions shall occur after the earlier to occur of (1) the date on which all of the conditions of the Offer have been satisfied or waived and (y2) if any condition the Final Date. In addition, if, at the Expiration Date, all of the conditions to the Offer is have been satisfied (or, to the extent permitted by this Agreement, waived by Parent) but the number of Shares validly tendered and not satisfied or waived on any scheduled Expiration Datewithdrawn pursuant to the Offer constitutes less than ninety percent (90%) of the Shares then outstanding, Merger Subsidiary shallwithout the consent of the Company, Parent shall have the right (subject to applicable law) to provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the rights of the parties in Article 11, extend the Offer Exchange Act) for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary up to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; providedafter Parent’s acceptance for exchange of the Shares then tendered and not withdrawn pursuant to the Offer, in each casewhich event Parent shall (1) give the required notice of such subsequent offering period and (2) immediately accept for exchange, that Merger Subsidiary shall not be required to extend and promptly exchange the Offer beyond Consideration for, all Shares tendered and not withdrawn as of such Expiration Date.
(c) Subject to the termination terms of the Offer and this Agreement. If upon Agreement and the acceptance satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of the Expiration Date, Parent shall accept for payment ofexchange, and payment exchange the Offer Consideration (subject to subsection (g) below) for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired Offer promptly after it is permitted to do so under applicable law.
(d) In the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless event that this Agreement is terminated in accordance with Article 11 hereof. Subject pursuant to the foregoing, including the requirements Section 7.1 prior to acceptance of Rule 14d-11, and upon the terms and subject Shares for exchange pursuant to the conditions of the Offer, Merger Subsidiary Parent shall, and Parent or shall cause it to Acquisition to, promptly terminate the Offer without accepting any Shares previously tendered.
(including by providing or causing to e) No fractions of a share of Parent Common Stock shall be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of issued in connection with the Offer, no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all Shares fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) shall, upon surrender of his or her Certificate or Certificates (as defined below), be entitled to receive an amount of cash (without interest) determined by multiplying (i) the closing price of a share of Parent Common Stock as reported on the Nasdaq National Market (the “NASDAQ”) on the first date on which Parent accepts for payment all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and by (ii) validly tendered the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the Subsequent Offering Periodcorporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(bf) On The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined below) will be tendered to Parent pursuant to the Offer.
(g) As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that and (ii) a registration statement on Form S-4 to register, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), the offer and sale of Parent Common Stock pursuant to the Offer and the Merger (together with all amendments, supplements and exhibits thereto, the “S-4”). The S-4 shall include a prospectus (the summary term sheet “Prospectus”) containing the information required thereby and, under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include or contain as exhibits, the Offer an exhibit an offer to Purchase exchange and a form of the related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectivelycollectively with the Prospectus, and together with any amendments or all amendments, supplements theretoand exhibits thereto and to the Prospectus, the “Offer Documents”), and . Parent shall cause the Offer Documents to be disseminated to all the holders of Sharesthe Shares as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all such information concerning with respect to the Company that is and its directors, officers and affiliates as shall be required to be included in the Schedule TO or the Offer DocumentsDocuments and S-4. Each of Parent, Merger Subsidiary on the one hand, and the Company agrees Company, on the other hand, shall 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 it shall be or shall have become (or shall become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary shall cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to holders of Shares. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration agrees to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Parent or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (the Company with copies of all such responses, whether written or oral. No filing of, or amendment or supplement to, or written correspondence to which reasonable and good faith consideration the SEC or its staff with respect to, the Offer Documents shall be given, it being understood that made by Parent without providing the Company and its counsel a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time, any information relating to Company or Parent, or any of their respective affiliates, officers or directors, should become known by Company or Parent, or Company, Parent or their respective subsidiaries shall take any action, which should be disclosed in an amendment or supplement to either the Offer Documents or the Schedule 14D-9, as the case may be, so that such documents would not include any misstatement of a material fact or omit any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which obtains knowledge of such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, Company and Parent shall cooperate to cause an appropriate amendment or supplement to the applicable SEC filings disclosing such information promptly to be filed with the SEC and disseminated to the stockholders of Company
(h) Parent agrees (i) to promptly upon the Company’s request provide all information about Parent and Acquisition required to be disclosed in the Schedule 14D-9, (ii) that all information provided by Parent for inclusion or incorporation by reference in the Schedule 14D-9 will not (at the respective times such materials, or any comments thereon amendments or supplements thereto, are filed with the SEC, first published, sent or given to stockholders of the Company, the Offer expires or shares of Parent Common Stock are delivered in connection with the Offer, or at the Effective Time, as soon the case may be) 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 and (iii) to promptly correct any information provided by Parent for the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect.
(i) Notwithstanding anything herein to the contrary, Parent, the Company or the Exchange Agent may withhold Offer Consideration as they reasonably practicable)deem necessary to satisfy their withholding obligations under applicable law, and the withholding of any such Offer Consideration for such purpose shall be treated as the payment thereof to the person from whom such amount was withheld for purposes of determining whether such person received amounts to which such person is entitled hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Valueclick Inc/Ca), Merger Agreement (Fastclick Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in paragraphs (a)—(g) of Annex I hereto shall have occurred and be continuing thatcontinuing, had on the Offer been commenced, would give rise to a right to terminate date that is the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable 10th Business Day after the date hereof and in any event within ten (10) Business Days after the date hereofof this Agreement, Merger Subsidiary shall (MergerSub shall, and Parent shall cause Merger Subsidiary MergerSub to) , commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any and for cash all of the outstanding Shares shares of Company Common Stock at the Offer Price. The initial Expiration Date of the Offer shall be 12 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer. The obligations of MergerSub to, and of Parent to cause MergerSub to, accept for payment and to pay for any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer and not validly withdrawn shall be subject only to (1i) to the condition that there shall be being validly tendered and not validly withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a expiration of the Offer that number of Shares thatshares of Company Common Stock which, together with the Shares then when added to any shares of Company Common Stock already owned by Parent and/or Merger Subsidiaryor any of the Parent Subsidiaries, if any, represents at least a majority of the total number shares of Shares Company Common Stock outstanding on a fully diluted basisFully-Diluted Basis, calculated excluding shares of Company Common Stock tendered in accordance with Section 3.5(b) the Offer pursuant to guaranteed delivery procedures (the “Minimum Condition”), ) and (2ii) the satisfaction or waiver (to the extent permitted under this Agreement) of the other conditions set forth in Annex I. Merger Subsidiary I hereto (collectively, the “Offer Conditions”). MergerSub expressly reserves the right right, from time to time, to waive any of the conditions to the Offer and Conditions or to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without the prior written consent of the Company, MergerSub shall not (iA) amend or waive the Minimum Condition may not be waived and Condition, (iiB) no change may be made that changes the form of consideration to be paid, decreases decrease the Offer Price or Price, (C) decrease the number of Shares shares of Company Common Stock sought in the Offer, imposes (D) change the form of consideration payable in the Offer, (E) impose conditions to the Offer that are in addition to those set forth the Offer Conditions, (F) extend the Expiration Date of the Offer in Annex I any manner other than as permitted in this Section 1.01 or modifies (G) amend any of the terms and conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment shares of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Company Common Stock. Notwithstanding the foregoing, (xu) Merger Subsidiary if there shall have been one or more Extension Excluded Parties as of the Extension Excluded Party Notice Date and the Company shall have delivered to Parent the written notice identifying such Extension Excluded Party in accordance with Section 5.03(b), MergerSub shall extend the Offer until the first Business Day following the Cut-off Date, (v) if on the initial Expiration Date of the Offer or on any subsequent scheduled Expiration Date of the Offer, all Offer Conditions shall not have been satisfied or waived, MergerSub may, from time to time, in its sole discretion, extend the Offer for one or more periods of not more than five (5) Business Days each beyond such Expiration Date, provided, however, that MergerSub shall not be entitled to extend the Offer to any date occurring after the Termination Date, (w) MergerSub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or NASDAQ applicable to the Offer or any period required by Applicable Law and Offer, (yx) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, MergerSub shall extend the Offer for one or more periods of no more than five (5) Business Days each in (or such longer period as the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days eachparties hereto agree) until such conditions are the condition set forth in clause (ii) of the first paragraph of Annex I related to the HSR Act and Foreign Antitrust Laws is satisfied or waived; provided, in each casehowever, that Merger Subsidiary in no event shall not MergerSub be required to extend the Offer (1) beyond the termination of Termination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement. If upon Agreement pursuant to Article VIII, (y) if on any scheduled Expiration Date, the acceptance Minimum Condition is not satisfied but all other Offer Conditions are satisfied, then MergerSub shall extend the Offer on a single occasion for payment ofa five (5) Business Day period; provided, however, that in no event shall MergerSub be required to extend the Offer (1) beyond the Termination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement pursuant to Article VIII, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary (z) MergerSub may, in its sole discretion, provide a “subsequent offering period period” in accordance with Rule 14d-11 under the Exchange Act (a “Subsequent Offering Period”) of not more than twenty (20) Business Days to meet the objective that there be validly tendered, in accordance with Rule 14d-11 the terms of the 1934 Act Offer, prior to the Expiration Date and not validly withdrawn, a number of not less than three shares of Company Common Stock, which when added to any shares of Company Common Stock already owned by Parent or any of the Parent Subsidiaries, represent at least 90% of the then outstanding shares of Company Common Stock at the Offer Closing (3) nor more than ten (10) business days immediately including following the Expiration Dateexercise of the Top-Up Option at Parent or MergerSub’s option). Merger Subsidiary shall not terminate or withdraw In addition, MergerSub may increase the Offer prior Price and extend the Offer to the extent required by applicable Law in connection with such increase in each case in its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofsole discretion and without the Company’s consent. Subject to the foregoingprior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or MergerSub (to the extent permitted under this Agreement) of the other Offer Conditions, including MergerSub shall, and Parent shall cause MergerSub to, in accordance with the requirements terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Rule 14d-1114e-1(c) promulgated under the Exchange Act) after expiration of the Offer (subject to the provisions of Rule 14d-11 under the Exchange Act, and to the extent applicable). The Offer Price shall be net to the seller in cash, without interest, upon the terms and subject to the conditions of the Offer. Acceptance for payment of the shares of Company Common Stock pursuant to and subject to the conditions of the Offer after the expiration of the Offer is referred to in this Agreement as the “Offer Closing”, Merger Subsidiary and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so tendered be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Certificate tendered, or required for any other reason relating to such holder or requesting Person, or shall have established to the satisfaction of Parent and MergerSub that such Tax either has been paid or is not required to be paid.
(b) MergerSub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, MergerSub shall, and Parent shall cause it to MergerSub to, promptly (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsand in any event within twenty-four (24) hours of such termination), accept for payment irrevocably and pay for, as promptly as practicable after the expiration of unconditionally terminate the Offer, all Shares (i) validly tendered and MergerSub shall not withdrawn in the event of any such termination pursuant to Article VIII acquire any shares of Company Common Stock pursuant to the Offer. If the Offer (is terminated by MergerSub, or this Agreement is terminated prior to the time at which Shares are first accepted for payment under acquisition of shares of Company Common Stock in the Offer, MergerSub shall promptly (within the “Acceptance Time”meaning of Rule 14e-1(c) promulgated under the Exchange Act) return, and (ii) validly shall cause any depositary acting on behalf of MergerSub to return, in accordance with applicable Law, all shares of Company Common Stock that have been tendered in the Subsequent Offering PeriodOffer to the registered holders thereof.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary MergerSub shall file 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 theretoOffer, the “Schedule TO”) that which shall include the summary term sheet required thereby and, as exhibits, offer to purchase and forms of the Offer to Purchase and a form of related letter of transmittal and summary advertisement notice of guaranteed delivery and all other required or appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “Offer Documents”). Subject to the Company’s compliance with Section 1.02(c), Parent and MergerSub shall cause the Offer Documents to be disseminated to all holders of Sharesshares of Company Common Stock as required by applicable U.S. federal securities Laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning MergerSub, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to 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 it shall have become (or shall become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall MergerSub further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, shares of Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaws. The Company shall promptly furnish to Parent and MergerSub all information concerning the Company that is required or reasonably requested by Parent or MergerSub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(c). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel MergerSub agree to: (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall i) provide the Company and its counsel with (i) any comments or other communications, whether written or oral, communications that Parent, Merger Subsidiary MergerSub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or MergerSub’s, as the case may be, receipt of those such comments or other communications and communications, (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, it being understood that cooperate with the Company and its counsel in responding to such comments or communications, and (iii) use their respective reasonable best efforts to respond promptly to such comments.
(d) Parent shall provide or cause to be provided to MergerSub on a timely basis the consideration necessary to pay for any comments thereon as soon as reasonably practicable)shares of Company Common Stock that MergerSub becomes obligated to accept for payment and pay for pursuant to the Offer, and shall cause MergerSub to fulfill all of MergerSub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.01, 8.02, 8.03 or 8.04 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) but in no event later than five business days after the initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the satisfaction of (i) the condition (the "Minimum Condition") that there at least the number of Shares that when added to the Shares already owned by Parent shall be constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights) shall have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), Offer and (2ii) to the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to the Offer Per Share Amount and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that without however, that, the prior written consent of the Company, Purchaser will not (i) decrease the Minimum Condition may not be waived and Per Share Amount, (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or reduce the number of Shares sought in the Offer, imposes (iii) add to the conditions to the Offer in addition to those set forth in Annex I A hereto, (iv) change the form of consideration to be paid in the Offer or modifies the conditions set forth in Annex I, or amends (v) make any other term change in the terms of the Offer in any manner that is adverse to the holders of Shares Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the reasonable judgment terms and subject to the conditions of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Offer. Notwithstanding the foregoing, (x) Merger Subsidiary without the consent of the Company, Purchaser shall have the right to extend the Offer (but in no event later than the Termination Date)
(i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law applicable law and (yiii) if any condition on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with the Shares then owned by Parent, represents more than 80% but less than 90% of the outstanding Shares on a fully-diluted basis. If all of the conditions to the Offer is are not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shallexpiration date of the Offer, subject to the rights of the parties in Article 11Section 8.04(b), Purchaser shall extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of from time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) time until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon Upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Purchaser shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time that all conditions to the Offer shall have been satisfied or waived by Purchaser. Subject to the terms and conditions of the Offer (including, without limitation, the time at which Shares are first accepted for payment under Minimum Condition), Purchaser shall pay, as promptly as practicable after expiration of the Offer, the “Acceptance Time”) and (ii) for all Shares validly tendered in the Subsequent Offering Periodand not withdrawn.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1, including all exhibits thereto (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1"), with respect to the Offer. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") that shall include and the related form of letter of transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall correct promptly to correct any information provided by it any of them for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or which shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary Purchaser shall take all steps necessary to cause the Schedule TO 14D-1, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and the Offer Documents each time before (and any such document is amendments thereto) prior to their being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or disseminated to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)holders of Shares. Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)communications.
Appears in 2 contracts
Sources: Merger Agreement (Unisource Worldwide Inc), Merger Agreement (Georgia Pacific Corp)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and hereof, but in any no event within ten (10) later than five Business Days after following the date hereofpublic announcement of the execution of this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) amend the Offer to (i) increase the purchase any and all of price to $89.50 per Share, net to the outstanding Shares at seller in cash, (ii) provide that the conditions to the Offer Priceshall be as set forth in Annex I and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiaryand its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(b) basis (the “Minimum Condition”), ) and (2) to the other conditions set forth in Annex I. I and to no other conditions. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, provided that without the prior written consent of the Company, Company (iwhich consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived and waived, (iiB) no change may be made that changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, imposes amends or adds to the conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment stockholders of the Company. The initial Company and (C) the expiration date of the Offer shall not be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)except as otherwise provided herein. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof Nasdaq Global Select Market applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Offer; provided that in no event shall Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary has not acquired shall, if requested by the Requisite Short Form Merger SharesCompany, Merger Subsidiary or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofAct. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i1) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii2) validly tendered in the Subsequent Offering PeriodPeriod (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(b) On As promptly as practicable after the date of commencement hereof, but in no event later than five Business Days following the public announcement of the Offerexecution of this Agreement, Parent and Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC a Tender Offer Statement on Schedule TO with respect an amendment to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that , which shall include the summary term sheet required thereby and, as exhibits, the Offer a revised offer to Purchase purchase and a form of letter of transmittal and summary advertisement reflecting the terms and other appropriate ancillary Offer documents conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO or and 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. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SECSEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly promptly, but in no event later than twelve hours, after the receipt of those 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Ventana Medical Systems Inc), Merger Agreement (Roche Holding LTD)
The Offer. (a) Provided that nothing this Agreement --------- shall not have occurred been terminated in accordance with Section 8.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within but in no event later than five business days after the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Pricedate hereof. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "Minimum Tender -------------- Condition") that there at least the number of Shares that combined with the Shares --------- already owned by Parent, Purchaser or any of their affiliates shall constitute at least 90% of the then outstanding Shares on the date that Shares may be accepted for payment by Purchaser shall have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number Offer and also shall be subject to the satisfaction of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that however, that, without the prior written -------- ------- consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that (i) which decreases the price per Share payable in the Offer, (ii) which changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) which, except as set forth in the next succeeding sentence, extends the period that the Offer is outstanding, (iv) which reduces the maximum number of Shares to be purchased in the Offer or (v) which imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse A hereto. Notwithstanding anything to the holders of Shares in contrary contained herein, without the reasonable judgment consent of the Company. The initial , Parent and Purchaser may extend the 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods not to exceed thirty (each 30) days in the reasonable judgment aggregate. The Per Share Amount shall, subject to applicable withholding of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to taxes, be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant paid net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, Merger Subsidiary shallwithout limitation, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsMinimum Tender Condition), accept for payment and pay forPurchaser shall pay, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered into and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under from, the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with --- all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1") that with respect to -------------- the Offer and the other Transactions (as hereinafter defined), which shall include have been provided to the Company and to which the Company shall not have reasonably objected. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees agree to --------------- correct 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 which shall have become (or shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lpiv Acquisition Corp), Agreement and Plan of Merger (Durakon Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 and that none of the events set forth in Annex A hereto shall have occurred and be continuing thatcontinuing, had Purchaser shall commence the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as reasonably practicable after the date hereof (and in any event within ten (10Business Days) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Priceannouncement of this Agreement. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”) that at least the number of Shares that shall constitute a majority of the then outstanding Shares on an as-if-converted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than the Rights), ) shall have been validly tendered and (2) not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of each of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right (i) to waive any such condition (provided, that Purchaser shall not waive the Minimum Condition without the written consent of the conditions Company), (ii) to increase the price per Share payable in the Offer and (iii) to make any change other changes in the terms of or conditions to the Offer; provided, however, that in the case of clause (iii) no change may be made which (w) decreases the Offer Price payable in the Offer or changes the form of consideration to paid in the Offer, (x) reduces the maximum number of Shares to be purchased in the Offer, (y) imposes conditions to the Offer in addition to or different from those set forth in Annex A hereto or (z) is otherwise disadvantageous to the stockholders of the Company. Subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition, with the written consent of the Company, and the other conditions of the Offer set forth in Annex A hereto, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered pursuant to the Offer as soon as practicable after Purchaser is legally permitted to do so under applicable law. Notwithstanding the foregoing, Purchaser may, without the prior written consent of the Company, (i) extend the Minimum Condition may Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment Shares, shall not be waived and satisfied or waived, or (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”), or the staff thereof thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date and each subsequent scheduled expiration date of the Offer or any period required by Applicable Law and (y) if any condition of the conditions to the Offer is not satisfied or waived on any scheduled Expiration waived, Purchaser shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to the Termination Date, Merger Subsidiary shall, subject from time to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary Purchaser shall not be required to extend the Offer offer beyond the termination of this AgreementTermination Date. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of under the 1934 Securities Exchange Act of not less than three 1934, as amended (3) nor more than ten (10) business days immediately following the Expiration Date“Exchange Act”). Merger Subsidiary Purchaser shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to any scheduled expiration date (as 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 it to (including by providing same may be extended or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included extended) without the written consent of the Company, except in the Schedule TO or the event that Purchaser terminates this Agreement pursuant to Section 7.1. The Offer Documents. Each Price shall, subject to applicable withholding of Parenttaxes, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and be net to the extent that such information shall have become (or shall become known to be) false or misleading seller in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharescash, 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).upon
Appears in 2 contracts
Sources: Merger Agreement (Imagistics International Inc), Merger Agreement (Oce N V)
The Offer. (a) Provided that nothing none of the events set --------- forth in Annex A hereto shall have occurred and or be continuing thatcontinuing, had Purchaser shall commence the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) but in no event later than 10 business days after the initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject only to (1i) the condition (the "Minimum Condition") that at least the number of Shares that when added to Shares already owned by Siemens Aktiengesellschaft and its direct and indirect wholly owned subsidiaries 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 convertible securities or upon the exercise of any options, warrants or rights, excluding, however, any securities not convertible or exercisable on or prior to July 31, 2001 or which have an effective conversion or exercise price in excess of the Per Share Amount immediately prior to the condition that there expiration of the Offer) shall be have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), Offer and (2ii) to the satisfaction or waiver of each of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to the Offer Per Share Amount, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, which decreases the Offer Price or Per Share Amount, waives the Minimum Condition, reduces the maximum number of Shares sought to be purchased in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)A hereto. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment Shares shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation rule or position regulation of the SEC Securities and Exchange Commission (the "SEC"), or the staff thereof thereof, applicable --- to the Offer Offer, or any period required by Applicable Law and (yiii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 10 business days eachbeyond the latest applicable date that would otherwise be permitted under clause (i) until or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer totals less than 90% of the outstanding Shares on a fully diluted basis. In addition, if, on the initial scheduled expiration date of the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 only conditions remaining unsatisfied are the failure of the 1934 waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of not less than three 1976, as amended (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary "HSR Act"), the German Competition Act or any other applicable ------- foreign antitrust law, to have expired or been terminated, then, Purchaser shall not terminate or withdraw extend the Offer prior from time to its Expiration Datetime until July 31, unless this Agreement is terminated in accordance with Article 11 hereof2001. Subject The Per Share Amount shall, subject to applicable withholding of taxes, be net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent . Purchaser shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept pay for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer (Offer. Notwithstanding the time at which Shares are first accepted for payment under immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the “Acceptance Time”right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e- 1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ------------ If the payment equal to the Per Share Amount in cash (the "Merger ------ Consideration") is to be made to a person other than the person in whose name ------------- the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and (ii) validly tendered in that the Subsequent Offering Periodperson requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file 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") with respect to the Offer. -- The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each --------------- of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly 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 Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 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 holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any prior to such document is documents being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or disseminated to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)holders of Shares. Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Merger Subsidiary or Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft/Adr), Merger Agreement (Siemens Aktiengesellschaft/Adr)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 7.1 and (ii) none of the events set forth in Annex I hereto that would entitle the Buyer not to consummate the Offer shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icontinuing, as promptly as practicable after practicable, the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary Buyer shall (and Parent or shall cause Merger a Subsidiary of the Buyer to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase for any and all of the outstanding Shares at Company Shares. In the event that the Buyer shall cause a Subsidiary of the Buyer to commence the Offer, each reference to the Buyer in this Article I and Annex I shall be deemed, where applicable, to refer to such Subsidiary. Each Company Share accepted by the Buyer pursuant to the Offer Priceshall be exchanged for the right to receive the Offer Price from the Buyer. The Offer obligation of the Buyer to accept for payment and to pay for any Company Shares tendered shall be subject only to the satisfaction or waiver of: (1i) to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the Expiration Time and not withdrawn a number of Company Shares that, together with the Company Shares then owned by the Buyer and its Subsidiaries, represents at least ninety-five percent (95%) of the Outstanding Company Shares (the "MINIMUM CONDITION"); and (ii) the other conditions set forth in Annex I. The Buyer expressly reserves the right to increase the Offer Price, to waive any of the conditions to the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made that: (1) decreases the Offer Price; (2) changes the form or combination of consideration to be paid in the Offer; (3) reduces the number of Company Shares to be purchased in the Offer; (4) amends the conditions set forth in Annex I to broaden the scope of such conditions, add any additional conditions, or otherwise amend any other material term of the Offer in a manner materially adverse to the Company Shareholders; (5) extends the Offer, except as provided in Section 1.1(b) or in the next sentence; or (6) amends the Minimum Condition, except as provided in the next sentence. The Buyer expressly reserves the right to amend or waive the Minimum Condition to reduce the percentage of Outstanding Company Shares required to be validly tendered in accordance with the terms of the Offer, prior to PROVIDED that the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary Buyer shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum a period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less fewer than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable 10 Business Days after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments amendment or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)waiver.
Appears in 2 contracts
Sources: Offer Agreement (Hewlett Packard Co), Offer Agreement (Hewlett Packard Co)
The Offer. (a) Provided Subject to the provisions of this Agreement and provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex IANNEX I hereto, Parent shall cause the Purchaser to, as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five (and Parent shall cause Merger Subsidiary to5) business days following the initial public announcement of the Purchaser's intention to commence the Offer, commence (within the meaning of Rule 14d-2 14d-2(a) under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer to purchase any and for all of the outstanding Shares at a price of $18.00 per Share, net to the Offer Price. The Offer shall be seller in cash, subject only (1i) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms a minimum of the Offer2,649,538 Shares (or such other number of Shares, prior when added to the Expiration Date number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned Subsidiary (as defined belowin Section 1.3(a)) of Parent, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least as shall constitute a majority of the total number of Company's Fully Diluted Shares outstanding on a fully diluted basis, calculated (as defined in accordance with Section 3.5(b4.2) (the “"Minimum Shares") being validly tendered prior to the expiration or termination of the Offer and not withdrawn (the "Minimum Share Condition”), ") and (2ii) to the other conditions to the Offer set forth in Annex ANNEX I. Merger Subsidiary The Purchaser may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer (the "Tendered Shares"), but no such assignment shall relieve the Purchaser of its obligations hereunder. The Purchaser expressly reserves the right to waive any of the conditions to the Offer set forth in ANNEX I and to make any change in modify the terms and conditions of or conditions to the Offer; providedPROVIDED, that HOWEVER, that, without the prior written consent approval of the Company, the Purchaser shall not amend or modify the terms of the Offer to (i) reduce the Minimum Condition may not cash price to be waived and paid pursuant to the Offer, (ii) no reduce the number of Shares as to which the Offer is made, (iii) change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, imposes (iv) modify or waive the Minimum Share Condition, or (v) impose conditions to its obligation to accept for payment or pay for the Offer in addition to Tendered Shares other than those set forth in Annex I or modifies ANNEX I. The Offer may not be extended without the conditions set forth in Annex ICompany's prior written consent; PROVIDED, or amends any other term HOWEVER, that the Purchaser may extend (and re-extend) the Offer for up to a total of 20 business days if, as of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer date, which shall be the twentieth (20th) 20 business day after days following commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such dateOffer, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary there shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares have been validly tendered and not withdrawn pursuant that number of Shares necessary to permit the Offer, Merger Subsidiary has not acquired to be effected without a meeting of the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) Company's stockholders in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering PeriodDGCL.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file with the SEC Securities and Exchange Commission ("SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that which shall include the summary term sheet required thereby and, as exhibits, the Offer contain or shall incorporate by reference an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule 14D-1 and other appropriate ancillary the documents included therein or incorporated therein by reference pursuant to which the Offer documents (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), . Parent and shall cause the Purchaser agree that the Offer Documents shall comply as to be disseminated form in all material respects with the Exchange Act, and the rules and regulations promulgated thereunder, and, on the date filed with the SEC and on the date first published, sent or given to all holders the Company's stockholders, shall not contain any untrue statement of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company or any of its representatives which is included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary the Purchaser and the Company agrees promptly to correct promptly 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. misleading, and each of Parent and Merger Subsidiary shall the Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, 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 on the Schedule TO and the Offer Documents each time before any such document is filed and all amendments and supplements thereto prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or dissemination to any comments made by stockholders of the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Company. Parent and Merger Subsidiary shall the Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications such comments.
(c) Subject to the terms and (ii) a reasonable opportunity conditions of the Offer, the Purchaser shall pay for Shares which have been validly tendered and not withdrawn pursuant to participate in the response Offer as promptly as practicable following expiration 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Offer.
Appears in 2 contracts
Sources: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)
The Offer. (a) Provided that nothing (i) none of the events or circumstances set forth in clauses (i) through (vi) of Annex A hereto shall have occurred and be continuing that, had existing (and shall not have been waived by Parent) and (ii) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date Company shall have complied with its applicable obligations under Section 1.2 hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten (10) business days after the date hereof.
(b) The obligation of Parent to purchase any accept for exchange, and all of the outstanding Shares at to exchange the Offer Price. The Consideration for, Shares tendered pursuant to the Offer shall be subject only (1i) to the satisfaction of the condition that (the “Minimum Condition”) that, at the expiration of the Offer, there shall be validly tendered and not withdrawn in accordance with the terms of the OfferOffer (other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not withdrawn that number of Shares which represents more than 50% of (A) Shares then outstanding, prior plus (B) shares of Company Common Stock which the Company may be required to issue pursuant to Company Stock Options (as defined below) outstanding on the date hereof with an exercise or conversion price on the date hereof of less than $10.17 and which do not terminate upon consummation of the Offer under Company Plans or otherwise, to the extent such Company Stock Options would be vested or exercisable as of the date which is ninety (90) days after the scheduled Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum ConditionFully-Diluted Shares”), ) and (2ii) to the satisfaction (or waiver by Parent) of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Parent expressly reserves the right to waive any of such conditions (other than the Minimum Condition and the conditions set forth in clauses (c), (d) and (e) of the second paragraph of Annex A hereto and clauses (i)(A) and (ii) (solely to the extent such clause relates to clause (i)(A)) of Annex A hereto), to increase the consideration per Share payable in the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, however, that no change may be made without the prior written consent of the CompanyCompany which decreases the Exchange Ratio for the Offer from that set forth herein, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paidpaid in the Offer, decreases reduces the Offer Price or the maximum number of Shares sought to be acquired 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 IA hereto, waives the Minimum Condition, modifies or amends any of the conditions set forth in Annex A hereto (although such conditions may be waived as provided herein), makes other term changes in the terms of the Offer that are in any manner adverse to the holders of Shares in or, except as provided below, extends the reasonable judgment of the Company. The initial expiration date of the Offer. Notwithstanding the foregoing, Parent may (A) extend the Offer beyond the initial scheduled expiration date, which shall be 20 business days following the twentieth (20th) business day after date of commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date“Initial Expiration Date” or, or such subsequent date to which the expiration of the Offer is as extended pursuant to and in accordance with the terms of this Agreementhereto, the “Expiration Date”). Notwithstanding , or any subsequent scheduled expiration date, if, at the foregoingscheduled expiration of the Offer, any of the conditions to Parent’s obligation to accept for exchange, and to exchange the Offer Consideration 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 Section 7.1 and (xB) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. Each extension of the Offer pursuant to clause (A) of the preceding sentence shall not exceed the lesser of ten business days (or such longer period as the Company and Parent may agree in writing in any period required by Applicable Law and (yparticular instance) if any condition or such fewer number of days that Parent reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. In addition, if, at the Expiration Date, all of the conditions to the Offer is have been satisfied (or, to the extent permitted by this Agreement, waived by Parent) but the number of Shares validly tendered and not withdrawn pursuant to the Offer constitutes less than 90% of the Shares then outstanding, without the consent of the Company, Parent shall have the right (subject to applicable law) to provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 business days after Parent’s acceptance for exchange of the Shares then tendered and not withdrawn pursuant to the Offer, in which event Parent shall (1) give the required notice of such subsequent offering period and (2) immediately accept for exchange, and promptly exchange the Offer Consideration for, all Shares tendered and not withdrawn as of such Expiration Date. Subject to the provisions of Section 7.1, if the Minimum Condition has been satisfied, but the other conditions set forth in Annex A are not satisfied or waived on any scheduled Expiration Dateor, Merger Subsidiary shall, subject to the rights extent permitted hereby, waived by Parent or Acquisition as of the parties in Article 11date the Offer would otherwise have expired, then, except to the extent that such conditions are incapable of being satisfied, at the request of the Company, Parent will extend the Offer for one or more periods a period not to exceed ten (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (2010) business days each) until such conditions are satisfied or waiveddays; provided, in each case, that Merger Subsidiary shall not be required Parent will continue to extend the Offer beyond such ten (10) business day extension period, solely to the termination extent that, at the expiration of this Agreement. If upon such extension period, all conditions set forth in Annex A, other than one or more of those conditions contained in clauses (b), (c) and (d) of the acceptance for payment ofsecond paragraph of Annex A, have been satisfied or, to the extent permitted hereby, waived by Parent or Acquisition, and payment such conditions contained in clauses (b), (c) and (d) of the second paragraph of Annex A remain capable of being satisfied; provided further, that in no event shall the foregoing require Parent to extend the Offer beyond January 15, 2004.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of the Expiration Date, Parent shall accept for exchange, and exchange the Offer Consideration (subject to any required withholding of taxes) for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, Offer promptly after it is permitted to do so under applicable law.
(d) No fractions of a share of Parent Common Stock shall be issued in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance connection with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) shall, and Parent shall cause it to upon surrender of his or her Certificate or Certificates (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsas defined below), accept for payment and pay for, as promptly as practicable after the expiration be entitled to receive an amount of the Offer, all Shares cash (without interest) determined by multiplying (i) the closing price of a share of Parent Common Stock on the New York Stock Exchange (the “NYSE”) (as reported in the New York City edition of the Wall Street Journal or, if not reported thereby, another nationally recognized source) on the first date on which Parent accepts for payment all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and by (ii) validly tendered the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the Subsequent Offering Periodcorporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(be) On The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined below) will be tendered to Parent pursuant to the Offer.
(f) As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that and (ii) a registration statement on Form S-4 to register, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), the offer and sale of Parent Common Stock pursuant to the Offer and the Merger (together with all amendments, supplements and exhibits thereto, the “S-4”). The S-4 shall include a prospectus (the summary term sheet “Prospectus”) containing the information required thereby and, under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include or contain as exhibits, the Offer an exhibit an offer to Purchase exchange and a form of the related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectivelycollectively with the Prospectus, and together with any amendments or all amendments, supplements theretoand exhibits thereto and to the Prospectus, the “Offer Documents”), and . Parent shall cause the Offer Documents to be disseminated to all the holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, Shares as and to the extent required by applicable U.S. federal securities laws. The Company shall provide Parent with such information with respect to the Company and its directors, officers and affiliates as shall be required to be included in the Offer Documents and S-4. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to holders of Shares. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration agrees to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Parent or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (the Company with copies of all such responses, whether written or oral. No filing of, or amendment or supplement to, or written correspondence to which reasonable and good faith consideration shall the SEC or its staff with respect to, the Offer Documents will be given, it being understood that made by Parent without providing the Company and its counsel a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time, any information relating to Company or Parent, or any of their respective affiliates, officers or directors, should become known by Company or Parent, or Company, Parent or their respective subsidiaries shall provide take any comments thereon action, which should be disclosed in an amendment or supplement to either the Offer Documents or the Schedule 14D-9, as soon the case may be, so that such documents would not include any misstatement of a material fact or omit any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which obtains knowledge of such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, Company and Parent shall cooperate to cause an appropriate amendment or supplement to the applicable SEC filings disclosing such information promptly to be filed with the SEC and disseminated to the stockholders of Company and the stockholders of Parent.
(g) Notwithstanding anything herein to the contrary, Parent, the Company or Exchange Agent may withhold Offer Consideration as they reasonably practicable)deem necessary to satisfy their withholding obligations under applicable law, and the withholding of any such Offer Consideration for such purpose shall be treated as the payment thereof to the person from whom such amount was withheld for purposes of determining whether such person received amounts to which such person is entitled hereunder.
Appears in 2 contracts
Sources: Merger Agreement (K2 Inc), Merger Agreement (K2 Inc)
The Offer. (a) Provided that nothing (i) none of the events or circumstances set forth in paragraphs (b)(i) through (b)(vi) of Annex A hereto shall have occurred and be continuing thatexisting (and shall not have been waived by Purchaser) and (ii) the Company shall have complied with its obligations under Section 1.2 Company Actions, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary 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 any and all of the outstanding Shares (other than the Currently Owned Shares) at the Offer PricePrice as promptly as reasonably practicable after the date hereof.
(b) Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto, at the time of the expiration of the Offer (as may be extended from time to time in accordance with this Section 1.1, the “Expiration Time”), Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Law. The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(c) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn satisfaction (or waiver by Purchaser) of the conditions set forth in accordance with Annex A hereto.
(d) Purchaser expressly reserves the right to:
(i) waive any of the conditions set forth in Annex A hereto;
(ii) increase the price per Share payable in the Offer; and
(iii) make any other changes in the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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, however, that no change may be made without the prior written consent of the Company, Company which:
(i1) decreases the Minimum Condition may not be waived and price per Share payable in the Offer;
(ii2) no change may be made that changes the form of consideration to be paid, decreases paid in the Offer Price or Offer;
(3) reduces the maximum number of Shares sought to be purchased in the Offer, ;
(4) imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, A hereto; or
(5) modifies or amends any of the conditions set forth in Annex A hereto or makes other term changes in the terms of the Offer that are in any manner adverse to the holders of Shares in or, except as provided below, extends the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth Expiration Time.
(20the) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, Purchaser shall:
(xi) Merger Subsidiary extend the Offer beyond the initial scheduled Expiration Time, which shall be 20 Business Days following the date of commencement of the Offer, or any extension of the Expiration Time, if, at the scheduled Expiration Time, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or waived, subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1. Termination; and
(ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer.
(f) Each extension of the Offer pursuant to paragraph (e)(i) of this Section 1.1 shall not exceed the lesser of five Business Days (or such longer period as the Company and Purchaser may agree in writing in any period required by Applicable Law and particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied.
(yg) if any condition If, at the Expiration Time, all of the conditions to the Offer is not have been satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to but the rights number of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired when taken together with the Requisite Short Form Merger Currently Owned Shares, Merger Subsidiary mayconstitutes less than 90% of the Shares then outstanding, in its sole discretionwithout the consent of the Company, Purchaser shall (subject to applicable Law) have the right to provide for a “subsequent offering period period” (“Subsequent Offering Period”) in accordance with as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 Business Days after Purchaser’s acceptance for payment of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly then tendered and not withdrawn pursuant to the Offer Offer, in which event Purchaser shall:
(i) give the time at which Shares are first accepted required notice of such subsequent offering period; and
(ii) immediately accept for payment under and promptly pay for all Shares validly tendered and not withdrawn as of such Expiration Time.
(h) The Company and Purchaser agree that no Shares held by the Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. The Company has caused each of the officers and directors of the Company listed on Section 1.1(h) of the Company Disclosure Schedule to execute and deliver to Parent and Purchaser letter agreements, substantially in the forms attached hereto as Annex B (collectively, the “Acceptance TimeEquity Award Letter Agreements”), pursuant to which such officers and directors have, among other things, agreed to (i) not exercise outstanding options to purchase Company Common Stock through Closing and (ii) validly tendered in relinquish all rights under existing equity award agreements with the Subsequent Offering PeriodCompany.
(bi) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC SEC:
(i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that with respect to the Offer; and
(ii) a Schedule 13E-3.
(j) The Schedule TO shall include contain or incorporate by reference an offer to purchase and forms of the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectively, together with any amendments or all amendments, supplements and exhibits thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each Parent and Purchaser shall 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, Merger Subsidiary on the one hand, and the Company agrees Company, on the other hand, shall 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 it shall be or shall have become (or shall become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary Purchaser shall cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Tender Offer and Merger Agreement (National Patent Development Corp), Tender Offer and Merger Agreement (Five Star Products Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex Iaccordance with Article VIII, as promptly as practicable after the date hereof and of this Agreement but in any no event within ten (10) Business Days after the date hereoflater than May 11, 2012, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any all issued and all outstanding shares of the outstanding Shares Common Stock (including shares of Restricted Common Stock) at the Offer Price; provided, however, that Merger Sub shall not be required to commence the Offer if (i) any of the conditions set forth in clauses 2(a), 2(b), 2(c), 2(e), 2(f), or 2(g) of Annex I have occurred or (ii) the Company Board shall have made an Adverse Change Recommendation. The Offer Price shall be subject only (1) net to the condition that there shall be validly tendered and not withdrawn seller in accordance with cash, subject to reduction only for any applicable Taxes.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Offer, prior to Minimum Condition and the Expiration Date (as defined below), a number satisfaction or waiver by Merger Sub of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves I (collectively, the right to waive any “Offer Conditions”), promptly after the later of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and twenty (ii20) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth Business Days (20th) business day after commencement of the Offer (determined for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (such dateii) the earliest date as of which the Minimum Condition has been satisfied and each of the other Offer Conditions has been satisfied, or such subsequent date waived, by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms, and accept for payment and pay promptly after the Expiration Date for all shares of Common Stock (including shares of Restricted Common Stock) validly tendered and not properly withdrawn pursuant to which the expiration 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, 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 (provided that Merger Sub will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each case subject to extending the Offer as required by applicable Law; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Common Stock sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer Conditions, (E) amend or modify any of the Offer Conditions or any of the terms of the Offer in a manner adverse to the holders of shares of Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions contemplated hereby, (F) waive or change the Minimum Condition 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 rescheduled Expiration Date), unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at 9:00 a.m. (New York City time) on the date that is twenty-one (21) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (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”). Notwithstanding .
(e) The Offer shall be extended from time to time as follows:
(i) If on the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Merger Subsidiary shallSub if permitted hereunder, subject then prior to the rights of the parties in Article 11then scheduled expiration date (A) Merger Sub may, at its option, extend the Offer for one or more periods of not more than five (5) Business Days each (or such other number of Business Days as the parties may agree and ending no later than the Termination Date in order to permit the reasonable judgment satisfaction of such conditions (subject to the right of Merger Subsidiary for Sub to waive any Offer Condition, other than the minimum period Minimum Condition, in accordance with this Agreement) and (B) Merger Sub shall, if such condition or conditions are then capable of being satisfied prior to the Termination Date, extend the Offer from time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) time until such conditions are satisfied or waived; provided, that Merger Sub shall not be required to extend the offer beyond the Termination Date; and
(ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff, in each casecase applicable to the Offer, provided that Merger Subsidiary Sub shall not be required to extend the Offer beyond the termination Termination Date.
(f) Merger Sub may (and the Offer Documents shall reserve the right of this Agreement. If upon the acceptance Merger Sub to) provide for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”within the meaning of Rule 14d-11 promulgated under the Exchange Act) in accordance compliance with Rule 14d-11 of promulgated under the 1934 Exchange Act of not less than three (3) Business Days nor more than ten twenty (1020) business days Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Dateexpiration of the Offer. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Subsidiary Sub to, and Merger Sub shall, accept for payment and pay for all shares of Common Stock validly tendered during such subsequent offering period as promptly as practicable after any such shares of Common Stock are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall not terminate provide or withdraw cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any and all shares of Common Stock 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 its Expiration Date, unless Closing.
(g) In the event that this Agreement is terminated in accordance with Article 11 hereof. Subject pursuant to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offerhereof, Merger Subsidiary Sub shall, and Parent shall cause it to Merger Sub to, (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsi) promptly (and in any event within twenty-four (24) hours of such termination), accept for payment irrevocably and pay for, as promptly as practicable after the expiration of unconditionally terminate the Offer, all Shares (iii) validly tendered and not withdrawn acquire any shares of Common Stock pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (iiiii) validly cause any depository acting on behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered in shares of Common Stock to the Subsequent Offering Periodregistered holders thereof.
(bh) On As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Sub shall use reasonable best efforts to (i) file 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 shall include will contain or incorporate by reference the Offer to Purchase and form of the related letter of transmittal, form of summary term sheet required thereby and, advertisement and such other customary documents as exhibitsthe Company and Parent may agree (the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all amendments or and supplements thereto, the “Offer Documents”), ) and shall (ii) cause the Offer Documents to be disseminated to all holders of Sharesshares of Common Stock, in each case as and to the extent required by applicable federal securities Laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company Sub agree that is required to be included in the Schedule TO or they shall cause the Offer DocumentsDocuments and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Each of Parent, Merger Subsidiary Sub and the Company agrees to 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 Subsidiary shall further agrees to use all reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Sharesshares of Common Stock, in each case, case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent and Merger Sub or Parent’s legal counsel, for inclusion in the Offer Documents, all information reasonably requested by Parent and reasonably available to the Company concerning the Company and the Company’s shareholders that may be required in connection with any action contemplated by this Section 1.1(h) to be included in the Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the shares of Common Stock. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC. In addition, 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 respect to the Offer Documents promptly after receipt of such comments, and any written responses thereto, and to promptly inform them of any oral comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO upon any written responses and the Offer Documents each time before to participate in any such document is filed with the SEC, oral responses and Parent and Merger Subsidiary shall give reasonable and good faith due consideration to any comments made all reasonable additions, deletions or changes, as applicable, suggested thereto by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Each of Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (i) respond promptly to any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from of the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt or the Offer.
(i) Parent shall cause to be provided to Merger Sub all of those comments or other communications the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, and (ii) shall cause Merger Sub to perform, on a reasonable opportunity to participate in the response timely basis, all of Merger Sub’s obligations under this Agreement. Parent and Merger Sub shall, and each of Parent and Merger Subsidiary to those comments and to provide comments on Sub shall ensure that response (to which reasonable and good faith consideration shall be givenall of their respective Affiliates shall, it being understood that tender any shares of Common Stock held by them into the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Offer.
Appears in 2 contracts
Sources: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
The Offer. (a) Provided that nothing this Agreement shall not have been --------- terminated in accordance with Article IX hereof and no event shall have occurred and be continuing that, had the Offer been commenced, which would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex I, as promptly as practicable A hereto (the "Offer Conditions") within a reasonable time (but not more than ten business days) after the date hereof public announcement of the execution of this Agreement, the Purchaser shall, and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary the Purchaser to) , commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer shall be subject only made by means of an offer to purchase (1the "Offer to Purchase") to the condition that there shall be validly tendered and not withdrawn in accordance with containing the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer this Agreement and to make any change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term A hereto. The obligations of the Purchaser and the Parent to consummate the Offer in any manner adverse and to accept for payment and purchase the Shares tendered shall be subject only to the holders of Shares in the reasonable judgment of the CompanyOffer Conditions. The initial expiration date of the Offer shall be the twentieth (20th) 20th business day after following commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under Offer. The Purchaser expressly reserves the Exchange Act) (such date, or such subsequent date right to which the expiration of the Offer is extended pursuant to and in accordance with modify the terms of this Agreementthe Offer, provided, however, that without the consent of the -------- ------- Company, the “Expiration Date”). Notwithstanding Purchaser shall not, and the foregoingParent shall not permit the Purchaser to (i) reduce the number of shares of Company Common Stock to be purchased in - the Offer, (xii) Merger Subsidiary shall extend reduce the Offer for Price, (iii) materially modify or add to the -- --- Offer Conditions, including any period change to the Minimum Condition (as defined in Annex A), (iv) change the form of consideration payable in the Offer, (v) except -- - as provided below, or as may be required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC"), change the expiration date of the Offer or (vi) amend any other condition of the staff thereof applicable -- Offer in any material respect in a manner adverse to the holders of the Shares. Notwithstanding anything in this Agreement to the contrary, the Purchaser shall have the right, without the prior consent of the Company, to extend the offer beyond its scheduled expiration date in the following events: (x) if at any - expiration date, any of the conditions to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is shall not have been satisfied or waived on any scheduled Expiration Datewaived, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be (y) for any - period required by applicable law; and (z) if all of the conditions to extend the Offer beyond - are satisfied or waived, but the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn is less than the amount necessary to effect a parent-subsidiary merger pursuant to Section 252 of the Delaware General Corporation, for a period not to exceed twenty days following the initial expiration date of the Offer, Merger Subsidiary has not acquired . The Offer Conditions are for the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 benefit of the 1934 Act Parent and the Purchaser and may be asserted by the Parent and the Purchaser regardless of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the circumstances giving rise to any such Offer prior to its Expiration DateConditions and, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of preceding sentence, may be waived by the OfferPurchaser in whole or in part. Subject only to the Offer Conditions, Merger Subsidiary the Purchaser shall, and the Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Purchaser to, accept pay for payment and pay for, as promptly as practicable after the expiration all of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (including any subsequent offering period) as soon as legally permissible. In the time event that (i) the Minimum Condition (as defined in Annex A) has not been satisfied or (ii) any condition set forth in paragraph (a), (d) or (e) of Annex A is not satisfied or waived at which Shares are first accepted for payment under the scheduled expiration date of the Offer, at the “Acceptance Time”reasonable request of the Company, Purchaser shall, and Parent shall cause Purchaser to, extend the expiration date of the Offer in increments of five business days each until the earliest to occur of (1) the satisfaction or waiver of such condition, (2) Parent - - reasonably determining that such condition to the Offer is not capable of being satisfied on or prior to the thirtieth day following the initial expiration date of the Offer, (3) the termination of this Agreement in accordance with its terms - and (ii4) validly tendered in the Subsequent Offering Period.thirtieth day following the initial expiration date of the Offer. -
(b) On the date of commencement Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and no event shall have occurred which would result in a failure to satisfy any of the OfferOffer Conditions, the Parent and Merger Subsidiary shall the Purchaser will file with the SEC SEC, as soon as practicable after the date hereof, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all supplements or amendments and supplements thereto thereto, and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as all exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall promptly to correct any information provided by it for use use, or incorporated by reference, 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 each of Parent and Merger Subsidiary Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's shareholders, in each case, case as and to the extent required by applicable U.S. federal Federal securities laws. The Parent and the Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC, and SEC or disseminated to the stockholders of the Company. The Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Purchaser will furnish the Company and its counsel (it being understood in writing with any comments that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Documents, promptly after receipt of those such comments or other communications and (ii) shall provide the Company and its counsel with a reasonable opportunity to participate in the response of the Parent and Merger Subsidiary or the Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 2 contracts
Sources: Merger Agreement (Prudential Mortgage Capital Co LLC), Merger Agreement (Prudential Mortgage Capital Co LLC)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable (but in no event later than five business days after the date hereof and in any event within ten (10) Business Days after public announcement of the date execution hereof), Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) a tender offer (the Offer to purchase "OFFER") for any and all of the outstanding Shares shares of Common Stock, par value $.03 per share (the "SHARES"), of the Company at the Offer Price. The Offer shall be subject only (1) a price of U.S.$45.00 per Share, net to the condition that seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE") and, subject to there shall be being validly tendered and not withdrawn in accordance with prior to the terms expiration of the Offer, prior to the Expiration Date (as defined below), a that number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, which represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) basis (the “Minimum Condition”), "MINIMUM CONDITION") and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves A hereto, shall consummate the right Offer in accordance with its terms ("FULLY DILUTED BASIS" means issued and outstanding Shares and Shares subject to waive issuance under Company Option Plans (as defined in Section 2.4) and Shares subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the conditions Company or securities convertible or exchangeable for such capital stock). The obligations of the Purchaser to commence the Offer and to make accept for payment and to pay for any change in the terms of Shares validly tendered on or conditions prior to the Offer; provided, that without the prior written consent expiration of the Company, (i) Offer and not properly withdrawn shall be subject only to the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes other conditions to the Offer in addition to those set forth in Annex I or modifies A hereto. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") containing the terms set forth in this Agreement, the Minimum Condition and the conditions set forth in Annex I, A hereto. The Purchaser shall not amend or amends waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought or amend any other term condition of the Offer in any manner adverse to the holders of the Shares (other than with respect to insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1) without the written consent of the Company (such consent to be authorized by the Board of Directors of the Company (the "COMPANY BOARD") or a duly authorized committee thereof); PROVIDED, HOWEVER, that if on the initial scheduled expiration date of the Offer, which shall be 20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the reasonable judgment expiration date; PROVIDED, HOWEVER, that the Purchaser shall, if the Company, Parent and the Purchaser have not obtained the approvals of any Governmental Entity (as defined in Section 3.4) as required under Section 5.4, extend the expiration date for a period of the lesser of (i) 2 business days after the date that all such approvals have been obtained and (ii) 35 days after such initial scheduled expiration date. In addition, the Offer Price may be increased, and the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares validly tendered as soon as it is permitted to do so under applicable law; PROVIDED, HOWEVER, that if, immediately prior to the initial expiration date of the Offer shall (as it may be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementextended), the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired Offer equal less than 90% of the Requisite Short Form Merger outstanding Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw Purchaser may extend the Offer prior for a period not to its Expiration Dateexceed 10 business days, unless this Agreement is terminated in accordance with Article 11 hereof. Subject notwithstanding that all conditions to the foregoing, including the requirements Offer are satisfied as of Rule 14d-11, and upon the terms and subject to the conditions such initial expiration date of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Extendicare Inc /Can/), Merger Agreement (Arbor Health Care Co /De/)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days calendar days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price, net to the seller in cash. The Offer shall only be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority two-thirds of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) basis (the “Minimum Condition”), ) and (2) to 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; providedprovided that, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, I or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Shares. Notwithstanding the foregoing, (x) without the consent of the Company, Merger Subsidiary shall have the right to extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Dateexpiration date of the Offer, Merger Subsidiary shall, subject to the rights of the parties in Article 11, shall extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of from time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) time until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination End Date. Following expiration of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration DateAct. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless other than in connection with the termination of this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)to, accept for payment and pay for, 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”) and (ii) validly tendered in the Subsequent Offering Period).
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and shall (ii) cause the Offer Documents Documents, along with the notice of the Merger required by Section 3-106(d)(1) of Maryland Law (the “Notice of Merger”), to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or TO, the Offer Documents or the Notice of Merger if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (CVS Caremark Corp), Merger Agreement (Longs Drug Stores Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 hereof and none of the events set forth in Annex I shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iexisting, as promptly as practicable (but in no event later than five (5) business days after the date hereof and in any event within ten (10) Business Days after public announcement of the date hereofexecution of this Agreement), Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be Price and, subject only (1) to the condition that there shall be being validly tendered and not withdrawn in accordance with prior to the terms expiration of the Offer, prior to the Expiration Date 9,158,155 Shares (as defined below), a number of including Shares that, together with the Shares then owned by Parent and/or Merger SubsidiaryParent, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(bPurchaser or any affiliates thereof) (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves I hereto, shall use its best efforts to consummate the right to waive any Offer in accordance with its terms. The obligations of the conditions Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to make any change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes other conditions to the Offer in addition to those set forth in Annex I or modifies hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Minimum Condition and the other conditions set forth in Annex II hereto and reflecting, where appropriate, the other terms set forth in this Agreement. The Purchaser shall not amend or waive the Minimum Condition (other than, at Purchaser's option, to lower the Minimum Condition to a majority of the issued and outstanding Common Stock on a fully diluted basis) and shall not decrease, or amends change the form of, the Offer Price or decrease the number of Shares sought, or amend any other term condition of the Offer in any manner adverse to the holders of the Shares or impose any condition to the consummation of the Offer beyond the Minimum Condition and the conditions set forth in Annex I hereto without the reasonable judgment written consent of the Company. The ; provided, however, that if on the initial scheduled expiration date of the Offer Offer, which shall be the twentieth twenty-one (20th21) business day days after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementcommenced, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable all conditions to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is will not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are have been satisfied or waived; provided, in each casethe Purchaser may, that Merger Subsidiary shall not be required from time to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary maytime, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 extend the expiration date and; provided further, however, that if on the initial scheduled expiration date of the 1934 Act Offer any conditions to the Offer that are reasonably capable of not less than three (3) nor more than being satisfied within ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoingdays, including the requirements Minimum Condition, will not have been satisfied or waived, the Purchaser shall extend the expiration date for a minimum of Rule 14d-11ten (10) business days. In no event shall the Purchaser be obligated to extend the Offer beyond June 30, 1999. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) If more than 9,158,155 Shares are validly tendered prior to the expiration date, as may be extended pursuant to Section 1.1(a), and not withdrawn, the Purchaser will, upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment (and pay forthereby purchase) the Shares purchased in the Offer on a pro rata basis, as promptly as practicable after with adjustments to avoid purchases of fractional shares of Common Stock, based on the number of Shares validly tendered prior to the expiration of the Offer, all Shares (i) validly tendered date and not withdrawn by each tendering stockholder. Subject to the terms of this Agreement, the Purchaser reserves the right (but shall not be obligated) to accept for payment more than 9,158,155 Shares pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”) that shall include the summary term sheet required thereby and14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “"Offer Documents”"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published or sent to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information furnished by the Company expressly for inclusion in the Offer Documents. The information supplied by the Company expressly for inclusion in the Offer Documents and by Parent or the Purchaser expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(d) Each of Parent and the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to all holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly upon request Each of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, will promptly to correct any information provided by it for use in the Schedule TO 14D-1 or the Offer Documents if and to the extent that such information it shall have become (or shall become known to be) false or misleading in any material respect. Parent , and Merger Subsidiary shall the Purchaser further will take all steps necessary to cause the Schedule TO 14D-1 or the Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 the reasonable opportunity to review and comment on the initial Schedule TO and the Offer Documents each time 14D-1 before any such document it is filed with the SEC. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall Purchaser will provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)communications.
Appears in 2 contracts
Sources: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.1 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, the Merger Sub shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within but in no event later than five business days after the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all initial public announcement of the outstanding Shares at Merger Sub's intention to commence the Offer PriceOffer. The obligation of the Merger Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "Minimum Condition") that there at least the number of Shares that, when added to the Shares already owned by Acquiror, shall be constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any outstanding options, warrants or rights) shall have been validly tendered and not withdrawn in accordance with prior to the terms expiration of the Offer, prior which shall be 20 business days after the date the Offer is commenced, and also shall be subject to the Expiration Date (as defined below), a number satisfaction of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. A hereto. The Merger Subsidiary Sub expressly reserves 5 the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, which decreases the Offer Price or the number of Shares sought price per Share payable in the Offer, which reduces the minimum number of Shares to be purchased in the Offer or, which amends or imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the CompanyA hereto. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary Per Share Amount shall, subject to the rights applicable withholding of the parties in Article 11taxes, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, Merger Subsidiary shallwithout limitation, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsMinimum Condition), accept for payment and pay forthe Merger Sub shall pay, as promptly soon as practicable after the it is legally permitted to do so under applicable law after expiration of the Offer, for all Shares (i) validly tendered and not withdrawn; provided, however, that if, immediately prior to the expiration date of the Offer, the Shares tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, when added to the “Acceptance Time”) and (ii) validly tendered in Shares already owned by Acquiror, equal less than 90% of the Subsequent Offering Period.
(b) On then outstanding Shares, the Merger Sub may extend the Offer one time for a period not to exceed 20 business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Ameriwood Industries International Corp), Merger Agreement (Horizon Acquisition Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 9.01 and that none of the events set forth in clauses (a) through (i) of Annex A hereto shall have occurred and or be continuing thatcontinuing, had Purchaser shall commence the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five (and Parent shall cause Merger Subsidiary to5) business days after the initial public announcement of Purchaser’s intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject only to (1i) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), ) that at least the number of Shares that shall 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 (2ii) to the satisfaction of each of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without unless previously approved by the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) Company in writing no change may be made that (i) amends or waives the Minimum Condition, (ii) decreases the price per Share payable in the Offer, (iii) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iv) reduces the maximum number of Shares to be purchased in the Offer, (v) imposes conditions to the Offer in addition to those set forth in Annex I or modifies A hereto, (vi) amends the conditions to the Offer set forth in Annex IA so as to broaden the scope of such conditions to the Offer, (vii) extends, except as provided for below, the Offer or amends (viii) makes any other term change to any of the terms and conditions of the Offer in any manner that is adverse to the holders of Shares in Shares. Notwithstanding the reasonable judgment foregoing, Purchaser shall from time to time, (i) extend the Offer, until such time as either (A) all of the Company. The initial expiration date of conditions to the Offer have been satisfied or waived or (B) this Agreement is terminated pursuant to Section 9.01, for one or more periods of not more than ten (10) business days each beyond the scheduled expiration date, which initially shall be the twentieth 20 business days (20th) business day after commencement of the Offer (determined calculated in accordance with Rule 14d-1(g)(3) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) following the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, (the “Initial Expiration Date”). Notwithstanding , if, at the foregoingInitial Expiration Date or any subsequent scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment Shares, shall not be satisfied or waived or (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, position or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”), or the staff thereof or of the NASDAQ, applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary Offer. The Per Share Amount shall, subject only to applicable withholding of taxes, be net to the rights of the parties seller in Article 11cash, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 . Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Purchaser to, accept pay for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn as promptly as practicable following the acceptance of Shares for payment pursuant to the Offer (Offer. Notwithstanding the time at which Shares are first accepted for payment under immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the “Acceptance Time”right to delay payment for Shares solely in order to comply in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e--1(c) promulgated under the Exchange Act. Purchaser may, and the Offer Documents (iias defined below) shall reserve the right to, extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not less than three nor more than 20 business days to meet the objective that there be validly tendered, in accordance with the terms of the Offer, prior to the expiration of the Offer (as so extended), and not withdrawn a number of Shares which, together with Shares then owned by Parent and Purchaser, represents at least 90% of the then outstanding Shares on a Fully Diluted Basis. 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 reasonable satisfaction of Purchaser that such taxes either have been paid or are not applicable. The Company agrees that no Shares held by the Company or any Subsidiary shall be tendered in the Subsequent Offering PeriodOffer.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall cause Purchaser to (i) file 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 shall include the summary term sheet required thereby and, as exhibits, with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall ii) cause the Offer Documents to be disseminated to all holders of SharesShares in accordance with Rule 14d-4 promulgated under the Exchange Act. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Company shall promptly upon request of furnish to Parent and Merger Subsidiary provide Parent Purchaser in writing with all information concerning the Company that is may be required to be included by applicable securities Laws or reasonably requested by Parent for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly 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 Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 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 holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsLaws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any prior to such document is documents being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or disseminated to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)holders of Shares. Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and, subject to providing the Company and (ii) its counsel with a reasonable opportunity to participate in the response of Parent and Merger Subsidiary or Purchaser, shall respond to those any such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that from the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)SEC regarding the Offer Documents.
Appears in 2 contracts
Sources: Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Genesis Microchip Inc /De)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration or termination of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) Offer (the “"Minimum ------- Share Condition”), ") and (2ii) to the other conditions to the Offer set forth in Annex I. Merger Subsidiary --------------- Exhibit A. The Purchaser may at any time transfer or assign to one or more --------- corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer (the "Tendered -------- Shares"), but no such assignment shall relieve the Purchaser of its ------ obligations hereunder. The Purchaser expressly reserves the right to waive any of the conditions to the Offer set forth in Exhibit A and to make any change in modify the terms --------- and conditions of or conditions to the Offer; provided, that however, that, without the prior written consent -------- ------- approval of the Company, the Purchaser shall not amend or modify the terms of the Offer to (i) reduce the Minimum Condition may not cash price to be waived and paid pursuant to the Offer, (ii) no reduce the number of Shares as to which the Offer is made, (iii) change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, imposes (iv) modify or waive the Minimum Share Condition, or (v) impose conditions to its obligation to accept for payment or pay for the Offer in addition to Tendered Shares other than those set forth in Annex I or modifies the conditions set forth Exhibit A. --------- Notwithstanding anything else in Annex I, or amends any other term of the Offer in any manner adverse this Agreement to the holders of Shares in contrary, without the reasonable judgment consent of the Company. The , Purchaser shall have the right to extend the Offer beyond the initial expiration date of the Offer (which shall be the twentieth twenty (20th20) business day after days following commencement of the Offer, the "Initial Expiration ------------------ Date"), to August 1, 2000 in any event, and in the following events: (i) from ---- time to time if, at the Initial Expiration Date (or extended expiration date of the Offer, if applicable) any of the conditions to the Offer (determined in accordance with Rule 14d-1(g)(3) under other than the Exchange Act) (such date, or such subsequent date Minimum Share Condition to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementclause does not apply) shall not have been satisfied or waived, the “Expiration Date”). Notwithstanding the foregoing, until such conditions are satisfied or waived; (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff Staff thereof applicable --- to the Offer or any period required by Applicable Law and applicable law; (yiii) if any condition all conditions to the Offer is not other than the Minimum Share Condition are satisfied or waived on any scheduled Expiration Datewaived, Merger Subsidiary shallbut the Minimum Share Condition has not been satisfied, subject to the rights of the parties in Article 11, extend the Offer for one or more periods not to exceed ten (10) business days each in (or an aggregate of thirty (30) business days for all such extensions; or (iv) if all of the reasonable judgment conditions to the Offer are satisfied or waived but the number of Merger Subsidiary shares of Company Common Stock validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of shares of Company Common Stock on a diluted basis, for the minimum an aggregate period of time reasonably expected by Merger Subsidiary not to be required to satisfy such conditions but in any event not in excess of exceed twenty (20) business days each) until (for all such conditions are satisfied or waivedextensions); provided, in each case, provided that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept and promptly pay for payment of, and payment for, all Shares validly -------- securities tendered and not withdrawn pursuant prior to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 date of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary such extension and shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including otherwise meet 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment 14d-11 under the Offer, the “Acceptance Time”) and (ii) validly tendered Exchange Act in the Subsequent Offering Periodconnection with each such extension.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “"Schedule -------- TO") with respect to the Offer, which shall contain or shall incorporate by -- reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein or incorporated therein by reference pursuant to which the Offer will be made, together with any supplements or amendments thereto (the "Offer Documents”"), ). --------------- Parent and shall cause the Purchaser agree that the Offer Documents shall comply as to be disseminated form in all material respects with the Exchange Act, and the rules and regulations promulgated thereunder, and, on the date filed with the SEC and on the date first published, sent or given to all holders the Company's stockholders, shall not contain any untrue statement of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company or any of its representatives which is included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary the Purchaser and the Company agrees promptly to correct promptly 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. misleading, and each of Parent and Merger Subsidiary shall the Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, 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 on the Schedule TO and the Offer Documents each time before any such document is filed and all amendments and supplements thereto prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or dissemination to any comments made by stockholders of the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Company. Parent and Merger Subsidiary shall the Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments such comments.
(c) Subject to the terms and conditions of the Offer, the Purchaser will accept for payment all Shares validly tendered (and not properly withdrawn in accordance with the Offer Documents) prior to the date the Offer expires (the "Expiration Date") promptly after the occurrence of the Expiration Date; --------------- provided that Purchaser shall accept and pay for all Shares which have been -------- validly tendered and not withdrawn prior to the Initial Expiration Date promptly after the Initial Expiration Date. Purchaser shall pay for Shares which have been 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 applicable rules and regulations of the SEC and the terms of this Agreement, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)part with applicable laws.
Appears in 2 contracts
Sources: Merger Agreement (Kaplan Inc), Merger Agreement (Kaplan Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred and be continuing thatbeen terminated in accordance with Section 8.1, had Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10but not later than the fifth (5th) Business Days after Day from and including the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all initial public announcement of the outstanding Shares at the Offer Pricethis Agreement). The obligation of Sub to commence the Offer shall be subject only (1) to the condition that there none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be validly tendered continuing (and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned waived by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated or Sub in accordance with Section 3.5(b) (the “Minimum Condition”their sole discretion), and (2) the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the other Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex I. Merger Subsidiary A. Sub expressly reserves the right to waive any of the conditions to the Offer and to make any or change in the terms of or conditions to the Offer; providedOffer except that, that without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition may not be waived and Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made that which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex I A hereto or which otherwise modifies the conditions set forth in such Annex I, A or (v) amends any other term of the Offer in any a manner adverse to the holders of Shares in Shares. Subject to the reasonable judgment of the Company. The initial expiration date terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the twentieth Offer.
(20thb) business day Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined in accordance with pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (such date10) Business Days for any extension, or such subsequent if on any then-scheduled expiration date to which the expiration of the Offer is extended pursuant to any of the events set forth in Annex A shall have occurred and in accordance with the terms of this Agreementbe continuing, the “Expiration Date”). Notwithstanding the foregoinguntil such time as such event or events shall no longer exist, and (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any period required by Applicable Law of the conditions to the obligation of Sub to accept for payment, purchase and (y) if any condition pay for Shares tendered pursuant to the Offer is has not been satisfied (or waived on any scheduled Expiration Datein accordance with this Agreement), Merger Subsidiary then, if requested by the Company, Sub shall, subject to the rights of the parties in Article 11and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more periods extensions of the Offer pursuant to this sentence for up to thirty (each 30) days in the reasonable judgment aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary conditions to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions the Offer are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Merger Subsidiary has not acquired Sub may (and if the Requisite Short Form Merger SharesCompany so requests Sub shall, Merger Subsidiary may, in its sole discretion, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 of under the 1934 Exchange Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Dateand, unless this Agreement is terminated in accordance with Article 11 hereof. Subject if applicable and to the foregoing, including the requirements of extent permitted under such Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodthereafter extend such subsequent offering period.
(bd) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Sub shall file 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 theretoOffer, the “Schedule TO”) that which shall include the summary term sheet required thereby andoffer to purchase, as exhibits, the Offer to Purchase and a form of the related letter of transmittal and summary advertisement form of notice of guaranteed delivery and all other appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), . The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to all holders of SharesShares as required by applicable federal securities Laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning Sub, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to 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 it shall have become (or shall become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall Sub further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, Shares as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SECSEC or disseminated to holders of Shares, and Parent and Merger Subsidiary Sub shall give reasonable and good faith due consideration to any comments made all reasonable additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. In addition, Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of those such 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, it being understood that the communications. The Company and its counsel shall provide be given a reasonable opportunity to review any responses to such comments thereon as soon as reasonably practicable)or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 2 contracts
Sources: Merger Agreement (Omrix Biopharmaceuticals, Inc.), Merger Agreement (Johnson & Johnson)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Article VIII hereof, (ii) none of the events or conditions set forth in Section II of Annex I hereto shall have occurred and be continuing that, had existing and (iii) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date Company shall have complied with its obligations under Section 1.2 hereof, Merger Subsidiary shall (Purchaser shall, and Parent shall cause Merger Subsidiary to) Purchaser, to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any and all of as promptly as reasonably practicable after the outstanding Shares at date hereof, but no later than five (5) Business Days thereafter (or such other later date as the Offer Priceparties may mutually agree in writing). The Offer shall be subject only (1) to In the condition that there shall be validly tendered and not withdrawn Offer, each Share accepted by the Purchaser in accordance with the terms of the OfferOffer shall be exchanged for the right to receive from the Purchaser the Offer Price, prior without interest. The obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and pay for any Shares tendered in the Offer and not withdrawn shall be subject to the Expiration Date (as defined below), a number satisfaction or earlier waiver of Shares that, together with all the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority conditions of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions Offer set forth in Annex I. Merger Subsidiary I, including the Minimum Tender Condition, and to the terms and conditions of this Agreement. The conditions to the Offer set forth in Annex I are for the sole benefit of Parent and Purchaser and each of Parent and Purchaser expressly reserves the right from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, to waive any of the conditions such condition, to increase the Offer and Price, or to make any change other changes in the terms and conditions of the Offer. The Company agrees that no Shares held by the Company or conditions any of its Subsidiaries will be tendered pursuant to the Offer; provided, that without .
(b) Without the prior written consent of the Company, neither Parent nor Purchaser shall (i) decrease the Minimum Condition may not be waived and (ii) no Offer Price or change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the Offer Price or (ii) decrease the number of Shares sought to be purchased in the Offer, imposes (iii) amend or waive satisfaction of the Minimum Tender Condition (as defined in Annex I), (iv) impose conditions to the Offer in addition to those the conditions to the Offer set forth in Annex I or modifies (v) amend the conditions to the Offer set forth in Annex I, or amends any other term of the Offer I in any manner that is adverse to the holders of Shares in the reasonable judgment of the Company. Shares.
(c) The initial expiration date of the Offer shall be made by means of an offer to purchase (the twentieth (20th“Offer to Purchase”) business day after commencement of having such terms and conditions as set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced (determined in accordance with within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file or cause to be filed with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, exhibits and supplements thereto and including exhibits thereto, the “Schedule TO”) with respect to the Offer that shall include will comply in all material respects with the summary term sheet required thereby andprovisions of all applicable federal securities laws, and will contain (including as exhibits, an exhibit) or incorporate by reference the Offer to Purchase and a form forms of the related letter of transmittal and summary advertisement and other appropriate ancillary Offer documents advertisement, to the extent required (collectivelywhich documents, together with any supplements, exhibits or amendments or supplements thereto, and any other schedules, forms and ancillary Offer documents and instruments filed in connection with the Offer and related transactions are referred to collectively herein as the “Offer Documents”), . Parent and Purchaser shall cause disseminate the Offer Documents to be disseminated to all holders of SharesShares as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of furnish to Parent and Merger Subsidiary provide Parent in writing with Purchaser all information concerning the Company that is may be required by applicable securities laws or reasonably requested by Parent or Purchaser for inclusion in the Schedule TO and the Offer Documents. Parent and Purchaser hereby further agree that the Schedule TO and the Offer Documents, when filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be included stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by or on behalf of the Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that the information provided by or on behalf of the Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents, when filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall promptly to correct any information provided by or on behalf of 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. Parent and Merger Subsidiary Purchaser shall take all steps necessary to cause the Schedule TO and the Offer Documents, as so amended, to reflect such corrected information, to be filed with the SEC and the other Offer Documents Documents, as so amended to reflect such corrected information, to be disseminated to holders of Sharesthe Company’s stockholders, in each case, case as and to the extent required by applicable U.S. federal securities laws, provided that, to the extent any information provided by or on behalf of the Company shall have become false or misleading in any material respect, the Company shall bear all costs, fees and expenses related to the correction and filing of the revised Schedule TO and Offer Documents with the SEC. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the any Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith due consideration to any comments made all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. In addition, Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents as promptly as practicable after receipt of those comments such comments, and any written 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, it being understood that the oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(d) Subject to the terms and conditions of this Agreement and the Offer, the Offer to Purchase shall provide that the Offer will expire at midnight, New York time, on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1 promulgated under the Exchange Act) after the date the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Purchaser agrees that after commencing the Offer, it shall not terminate or withdraw the Offer or, except as set forth in this Section 1.1(d), extend the expiration date of the Offer unless, at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived or, in the case of termination, such termination is in connection with the termination of this Agreement pursuant to Article VIII hereof. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent shall cause Purchaser to extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Purchaser becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer if such conditions may, in the reasonable judgment of Parent, be satisfied prior to the applicable termination date set forth in Section 8.2(a). Parent may cause Purchaser to (i) extend the expiration date of the Offer (as it may be extended) for any comments thereon period required by any rule, regulation or interpretation of the SEC or the staff thereof applicable to the Offer and (ii) extend the expiration date of the Offer (as soon as reasonably practicableit may be extended) for up to two periods, each for up to five (5) Business Days, if on such expiration date the conditions for the Offer described in Annex I hereto, other than the Minimum Tender Condition, shall have been satisfied or earlier waived. Notwithstanding the foregoing, Purchaser (or Parent on its behalf) may, in its sole discretion provide a “subsequent offering period” for the Offer for a number of days in accordance with Rule 14d-11 promulgated under the Exchange Act (each such period, a “Subsequent Offering Period”).
(e) Subject to the terms and conditions set forth in this Agreement and the Offer, Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after the applicable expiration date of the Offer (as it may be extended) and in any event in compliance with Rule 14e-1(c) promulgated under the Exchange Act. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer or during any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction only for any applicable federal back-up withholding or other Taxes payable by such holder. To the extent any such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Parent shall provide, or cause to be provided to Purchaser, immediately preceding the applicable expiration time of the Offer (as it may be extended), the funds necessary to pay for any Shares of Common Stock that Purchaser accepts or is obligated to accept for payment pursuant to the Offer, and shall cause Purchaser to perform on a timely basis all of Purchaser’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
The Offer. (ai) Provided that nothing this Merger Agreement shall not have occurred been terminated in accordance with Section 8.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, as promptly soon as practicable after (but in no event later than five business days from the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning public announcement of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of this Merger Agreement) the Offerors shall commence the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth (20th) business day from and after commencement the date the Offer is commenced (the "Initial Expiration Date").
(ii) The obligation of the Offerors to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the following conditions: (determined in accordance with Rule 14d-1(g)(3A) under the Exchange Act) (such date, or such subsequent date that there be validly tendered and not withdrawn prior to which the expiration of the Offer is extended pursuant to that number of Shares which, when taken together with all Shares owned by the Offerors, represents at least ninety percent of the then outstanding Shares on a fully-diluted basis (the "Minimum Condition"), and (B) the conditions set forth in accordance Annex A hereto (collectively, the "Additional Offer Conditions," and together with the terms of this AgreementMinimum Condition, the “Expiration Date”"Offer Conditions"). Notwithstanding , any of which Additional Offer Conditions may be waived by the foregoingOfferors in their sole discretion.
(iii) The Offerors expressly reserve the right to amend or make changes to the terms and conditions of the Offer; provided, however, that, without the prior written consent of the Company (expressed in a resolution adopted by both the Special Committee and the Board), the Offerors shall not (v) decrease the Offer Price or change the form of consideration to be paid in the Offer, (w) waive or modify the Minimum Condition, (x) decrease the number of Shares sought in the Offer, (y) impose any additional conditions to the Offer from the Offer Conditions, or (z) otherwise amend the Offer in a manner that would adversely affect the holders of Shares. The Company agrees that no Shares owned by the Company for its account will be tendered pursuant to the Offer. Notwithstanding anything in this Merger Subsidiary Agreement to the contrary, without the consent of the Company, the Offerors shall have the right to extend the Offer beyond the Initial Expiration Date in the following events: (1) from time to time if, at the Initial Expiration Date (or extended expiration date of the Offer, if applicable), any of the conditions to the Offer have not been satisfied or waived; (2) for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable applicable Law and (yas hereinafter defined); or (3) if any condition pursuant to an amendment to the Offer is providing for a "subsequent offering period" to the extent permitted under, and in compliance with, Rule 14d-11 under the Exchange; provided, that notwithstanding anything to the contrary, if any of the conditions to the Offer are not satisfied or or, if applicable, waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights expiration date of the parties in Article 11Offer, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary Offerors shall not be required to extend the Offer for a period of 10 business days and, if at the end of such 10 business day period all of the conditions to the Offer are still not satisfied or, if applicable, waived, an additional period of 10 business days; provided further, that, without the consent of the Company (expressed in a resolution adopted by both the Special Committee and the Board), the Offerors shall not extend the Offer beyond the termination date that is 50 business days from the date on which the Offer was commenced.
(iv) Following the satisfaction or waiver of this Agreement. If upon the acceptance Offer Conditions, Purchaser shall accept for payment ofpayment, and payment forin accordance with the terms of the Offer, all Shares validly tendered pursuant to the Offer and not withdrawn as soon as it is permitted to do so pursuant to applicable Law. On or prior to the dates that Purchaser (or, in the case of the Merger, the Surviving Corporation) becomes obligated to accept for payment and pay for Shares pursuant to the OfferOffer and Merger, Merger Subsidiary has not acquired the Requisite Short Form Merger SharesMr. Sosnoff shall provide, Merger Subsidiary mayor ▇▇▇▇▇ ▇▇ ▇▇ provided, to Purchaser (or, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 the case of the 1934 Act Merger, the Surviving Corporation) the funds necessary to pay for all Shares that Purchaser (or, in the case of not less than three (3the Merger, the Surviving Corporation) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw becomes so obligated to accept for payment and pay for pursuant to the Offer prior and Merger, as the case may be. The Offer Price shall, subject to its Expiration Dateany required withholding of Taxes (as defined below), unless this Agreement is terminated in accordance with Article 11 hereof. Subject be net to the foregoingstockholder in cash without interest and less any required withholding taxes, 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary The Offerors shall file with the SEC on the date that the Offer is commenced a Tender Offer Statement on Schedule TO with respect to the Offer (together with all any supplements or amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”") that shall include the summary term sheet required thereby andwhich will contain, as exhibitsamong other things, the Offer offer to Purchase and a purchase, form of the related letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), and a Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the Offer which shall be filed as a part of the Schedule TO (the "Offeror Schedule 13E-3"). The Offer Documents and Offeror Schedule 13E-3 shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and, if applicable, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Offerors with respect to information supplied by the Special Committee in writing for inclusion in the Offer Documents. The Offerors further agree to take all steps necessary to cause the Offer Documents and Offeror Schedule 13E-3 to be filed with the SEC and to be disseminated to all holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees Offerors agree promptly to correct any information provided by them or it for use in the Schedule TO or the Offer Documents or Offeror Schedule 13E-3 if and to the extent that such information it shall have become (or shall become known to be) false or and misleading in any material respect. Parent respect and Merger Subsidiary shall the Offerors further agree to take all steps necessary to cause the Offer Documents or Offeror Schedule TO 13E-3 as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company Special Committee and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule TO and the Offer Documents each time Offeror Schedule 13E-3 before any such document it is filed with the SEC. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration the Offerors agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company Special Committee and its counsel with (i) any comments or other communications, whether written or oral, communications that Parent, Merger Subsidiary they or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Offeror Schedule 13E-3 promptly after the receipt of those such comments or other communications.
(c) The Offerors agree to provide the Special Committee and its counsel with any comments or other communications and (ii) a reasonable opportunity to participate in the response that either 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, it being understood that the Company and them or its counsel shall provide any may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly or Offeror Schedule 13E-3 after the receipt of such comments thereon as soon as reasonably practicable)or other communications.
Appears in 2 contracts
Sources: Merger Agreement (Atalanta Acquisition Co), Merger Agreement (Steinberg Craig B)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX, Newco shall commence the Offer not later than the fifth business day from and including the date of initial public announcement of this Agreement. Newco shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer shall have occurred been satisfied or waived by Newco. The obligation of Newco to accept for payment, purchase and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pay for Shares tendered pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to such conditions and to the further condition that there a number of Shares representing not less than a majority of the Shares then outstanding on a fully diluted basis shall be have been validly tendered and not withdrawn prior to the final expiration date of the Offer (the "Minimum Condition"). Unless previously approved by the Company in accordance with writing, no change in the terms of Offer may be made (i) which decreases the price per Share payable in the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex I A hereto or which modifies the conditions set forth in Annex I, A in a manner adverse to the holders of Shares or (v) which amends any other term of the Offer in any a manner adverse to the holders of Shares in the reasonable judgment Shares. Notwithstanding the foregoing, Newco may, without the consent of the Company. The , (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond the then scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then scheduled expiration date of the Offer any of the conditions to Newco's obligation to accept for payment and pay for the Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived (and, at the twentieth request of the Company, Newco shall, subject to Parent's right to terminate this Agreement pursuant to Article IX, extend the Offer for additional periods, unless the only conditions not satisfied or earlier waived on the then scheduled expiration date are one or more of the Minimum Condition and the conditions set forth in paragraphs (20thb) and (e) of Annex A hereto, provided that (x) if the only condition not satisfied is the Minimum Condition, the satisfaction or waiver of all other conditions shall have been publicly disclosed at least five business day after commencement days before termination of the Offer and (determined in accordance with Rule 14d-1(g)(3y) under if paragraph (b) of Annex A hereto has not been satisfied and the Exchange Act) (such datefailure to so satisfy can be remedied, or such subsequent date to which the expiration of the Offer shall not be terminated unless the failure is extended pursuant to and in accordance with not remedied within 30 calendar days after Parent has furnished the terms Company written notice of this Agreement, the “Expiration Date”such failure). Notwithstanding the foregoing, (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable Law and (yiii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 5 business days eachbeyond the latest expiration date that would otherwise be permitted under clause (i) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be required effected without a meeting of the Company's shareholders in accordance with Section 180.1104 of the Wisconsin Business Corporation Law (the "BCL"). Subject to extend the terms and conditions of the Offer beyond the termination of and this Agreement. If upon the acceptance for payment of, Newco shall, and payment forParent shall cause Newco to, pay for all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw Offer that Newco becomes obligated to purchase pursuant to the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly soon as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Newco shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all any supplement or amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “"Offer Documents”"), and shall cause the . The Offer Documents to be disseminated to will comply in all holders material respects with the provisions of Sharesapplicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Newco and the Company agrees each agree promptly to correct any information provided by it them for use in the Schedule TO or the Offer Documents if and to the extent that such information it shall have become (or shall become known to be) false or misleading in any material respect. Parent respect and Merger Subsidiary shall Newco further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The To the extent practicable, the Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before and any such document is filed amendments thereto prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Taqu Inc), Merger Agreement (Giddings & Lewis Inc /Wi/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article VIII and be continuing that, had the Offer been commenced, would give rise subject to a right to terminate the Offer pursuant to any of the conditions set forth in Annex IA (as defined below), as promptly as practicable after the date hereof and practicable, but in any no event within ten later than five (105) Business Days after the date hereofpublic announcement of the execution of this Agreement by the parties, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer to purchase for any and all of the outstanding Shares Shares, at the Offer ------------ Price. The Offer parties agree such public announcement shall occur promptly after the execution and delivery of this Agreement. The obligation of Parent to accept for payment and to pay for any Shares tendered shall be subject only to (1i) to the condition that there shall the FD Shares and at least a majority of issued and outstanding Shares not owned by FD be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “"Minimum ------- Condition”"), and (2ii) to the other conditions set forth in Annex I. Merger Subsidiary A hereto ("Annex --------- ----- A"). Parent expressly reserves the right to waive any of the conditions to increase the Offer and Price or to make - any change other changes in the terms and conditions of or conditions to the Offer; provided, that without however, that, unless previously approved by the prior written consent Special Committee (the "Special ------- Committee") of the Board of Directors (the "Company's Board") and the Company's --------- --------------- Board in writing, (i) the Minimum Condition may not be waived and (ii) no change may be made that which (i) decreases the Offer Price, (ii) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex I or modifies A, (v) amends the conditions set forth in Annex IA to broaden the scope of such conditions, or (vi) amends any other term of the Offer in any a manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of Shares, (vii) extends the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined except as provided in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such dateSection 1.1(b), or such subsequent date to which (viii) amends the expiration of Minimum Condition. It is agreed that the Offer is extended pursuant to and conditions set forth in accordance with Annex A other than the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary Minimum Condition are for the minimum period sole benefit of time reasonably expected Parent and may be waived by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; providedParent, in each case, that Merger Subsidiary shall not be required whole or in part at any time and from time to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, time in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 other than the Minimum Condition, as to which prior written approval of the 1934 Act Special Committee and the Company's Board is required. The failure by Parent at any time to exercise any of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary foregoing rights shall not terminate 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 Company agrees that no Shares held by the Company or withdraw the Offer prior to any of its Expiration Date, unless this Agreement is terminated Subsidiaries (as defined in accordance with Article 11 hereof. 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 it to (including by providing or causing to Section 9.2) will be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering PeriodOffer.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Fluor Daniel Gti Inc), Merger Agreement (International Technology Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 7.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within not, without the meaning consent of Rule 14d-2 under a majority of the ▇▇▇▇ ▇▇▇) Independent Directors, accept for payment any Shares tendered pursuant to the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents unless at least a majority of the total then issued and outstanding Shares, other than Shares owned by Parent and Purchaser, shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "First Minimum Condition"). The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (i) shall be subject to the condition (the "Second Minimum Condition") that at least the number of Shares outstanding on that when added to the Shares already owned by Parent and Purchaser shall constitute not less than 90% (or such other amount which would allow the Merger to be effected without a fully diluted basis, calculated meeting of the Company's stockholders in accordance with Section 3.5(b253 of the Delaware Law) (of the “Minimum Condition”), then issued and outstanding Shares shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (2ii) shall be subject to the satisfaction of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition (except the conditions First Minimum Condition), to increase the Offer price per Share payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, which decreases the price per Share payable in the Offer Price or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex I or modifies A hereto and (ii) in the event all conditions set forth in Annex IA shall have been satisfied other than the Second Minimum Condition, or amends any other term of Purchaser may extend the Offer in any manner adverse to for a period or periods aggregating not more than 20 business days after the holders later of Shares in (x) the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived date on any scheduled Expiration Datewhich all other conditions set forth in Annex A shall have been satisfied, Merger Subsidiary after which time Purchaser shall waive the Second Minimum Condition. The Per Share Amount shall, subject to the rights applicable withholding of the parties in Article 11taxes, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, Merger Subsidiary shallwithout limitation, the First Minimum Condition and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsSecond Minimum Condition), accept for payment and pay forPurchaser shall pay, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodwithdrawn.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1") that with respect to the Offer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and the other transactions contemplated hereby (the "Transactions"). The Schedule 14D-1 and the Schedule 13E-3 shall include contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary term sheet required thereby andadvertisement (the Schedule 14D-1, as exhibitsthe Schedule 13E-3, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Schedule TO or the Offer Documents if and to the extent that such information which shall have become (or shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule TO and the Offer Documents each time before and any such document is filed amendments thereto prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (i) a copy of any written comments or other communications, whether written telephonic notification of any verbal comments Parent or oral, that Parent, Merger Subsidiary or their counsel Purchaser may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications thereof and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to shall provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide with a copy of any comments thereon as soon as reasonably practicable)written responses and telephonic notification of any verbal responses of Parent, Purchaser or their counsel.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Novartis Inc), Agreement and Plan of Merger (Novartis Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 10.1 and none of the events set forth in Exhibit A attached hereto and made a part hereof shall have occurred and or be continuing thatexisting (unless such event shall have been waived by Parent), had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) to commence, and Subsidiary shall commence, the Offer to purchase any and all of the outstanding Shares at the Offer PricePer Share Amount. The obligation of Subsidiary to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (1i) to the condition (the "Minimum Condition") that there shall be validly tendered and not withdrawn in accordance with at least the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together when combined with the Shares then already owned by Parent and/or Merger SubsidiarySubsidiary and its direct or indirect subsidiaries, represents constitute at least a majority sixty-six and 2/3rds percent (66.66%) of the total number of then outstanding Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (including, without limitation, all Shares issuable upon the “Minimum Condition”)conversion of any convertible securities or upon the exercise of any options, warrants or rights shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (2ii) to the satisfaction or waiver of the other conditions set forth in Annex I. Merger Exhibit A hereto. Subsidiary expressly reserves the right to waive any of such condition (other than the conditions Minimum Condition), to increase the Offer Per Share Amount payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the OfferOffer (notwithstanding Section 10.3); provided, however, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, which (i) decreases the Offer Price or the number of Shares sought Per Share Amount payable in the Offer, (ii) reduces the maximum number of Shares to be purchased in the Offer, (iii) imposes conditions to the Offer in addition to those set forth in Annex I Exhibit A hereto, (iv) amends or modifies changes the terms and conditions set forth in Annex I, or amends any other term of the Offer in any manner materially adverse to the holders of Shares in (other than Parent and its subsidiaries) or (v) changes or waives the reasonable judgment of the CompanyMinimum Condition. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary Per Share Amount shall, subject to the rights applicable withholding of the parties in Article 11taxes, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant net to the Offerseller, Merger Subsidiary has not acquired the Requisite Short Form Merger Shareswithout interest thereon, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, Merger Subsidiary shallwithout limitation, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsMinimum Condition), Subsidiary shall accept for payment and pay forpay, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodwithdrawn.
(b) On Upon the date execution and delivery of commencement this Agreement, the Parent and Subsidiary shall make a public announcement disclosing only the information pertaining to the Offer permitted by Rule 135(a)(4) promulgated by the Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the Offer"Securities Act"). Promptly after such public announcement, Parent and Merger Subsidiary shall file a Registration Statement on Form S-4 (the "Registration Statement") with the SEC for purposes of registering the Parent Common Stock pursuant to the Securities Act. Parent and Subsidiary shall take all reasonable efforts to cause the Registration Statement to be declared effective by the SEC as soon as possible after filing.
(c) As soon as reasonably practicable after the Registration Statement is declared effective by the SEC, Subsidiary shall file with the SEC and disseminate to holders of Shares to the extent required by law a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1") that with respect to the Offer. The Schedule 14D-1 shall include contain or shall incorporate by reference an offer to purchase the Shares, which may be comprised of the prospectus contained in the Registration Statement, (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Schedule TO Registration Statement or the Offer Documents if and to the extent that such information which shall have become (or shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall further agree to take all steps necessary to cause the Registration Statement and Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO Registration Statement and the Offer Documents each time before and any such document is filed amendments thereto prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall will provide the Company and its counsel with (i) a copy of any written comments or other communications, whether written telephonic notification of any oral comments Parent or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO Registration Statement or Offer Documents promptly after the receipt of those comments or other communications thereof and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to will provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel with a copy of any written responses and telephonic notification of any oral response of Parent, Subsidiary or their counsel. In the event that the Offer is terminated or withdrawn by Subsidiary, Parent and Subsidiary shall provide any comments thereon as soon as reasonably practicable)cause all tendered Shares to be returned promptly (and to full extent within their power, within five (5) business days) to the registered holders of the Shares represented by the certificate or certificates surrendered to the paying agent designated in the Offer Documents.
Appears in 2 contracts
Sources: Merger Agreement (Comforce Corp), Merger Agreement (Uniforce Services Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX and none of the events set forth in ANNEX A shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iexisting, as promptly as reasonably practicable after (but in no event later than five business days from the date hereof and in any event within ten (10) Business Days after public announcement of the date hereofexecution of this Agreement), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any and acquire all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) a price of $13.00 per Share, net to the condition that there shall seller in cash, subject to applicable withholding of taxes, without interest (such price, or such higher price per Share as may be validly tendered and not withdrawn paid in accordance with the terms of the Offer, prior being referred to herein as the Expiration Date "OFFER PRICE"). Subject to (as defined below), a number of Shares that, together with i) the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority satisfaction of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), Condition and (2ii) to the satisfaction or waiver of the other conditions set forth in Annex I. Merger Subsidiary expressly reserves ANNEX A, Purchaser shall consummate the right to waive any of the conditions Offer in accordance with its terms and promptly accept for payment and pay for Shares validly tendered pursuant to the Offer and not withdrawn as soon as Purchaser is legally permitted to do so under applicable law. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") and shall be subject to the Minimum Condition and the other conditions set forth in ANNEX A hereto, and shall reflect, as appropriate, the other terms set forth in this Agreement. Parent and Purchaser expressly reserve the right, in their sole discretion, subject to compliance with the Exchange Act and the terms of this Agreement, to waive any such condition and to make any change other changes in the terms and conditions of or conditions to the Offer; providedPROVIDED, HOWEVER, that without the prior written consent of the Company, Parent and Purchaser shall not (i) amend or waive the Minimum Condition may not be waived and Condition, (ii) no change may be made that changes the form of consideration to be paid, decreases decrease the Offer Price or Price, (iii) decrease the maximum number of Shares sought to be purchased in the Offer, imposes conditions to (iv) waive or satisfy the Offer in addition to those Financing Condition (as defined herein) unless the representation set forth in Annex I or modifies the conditions set forth in Annex ISection 5.04 shall be true and correct, or amends (v) amend any other term or condition of the Offer in any manner or impose any term or condition that is adverse to the holders of the Shares in without the reasonable judgment written consent of the Company. The initial expiration date Company executed by the Chief Executive Officer of the Offer shall be Company stating that it was authorized by the twentieth Company Board or a duly authorized committee thereof. Notwithstanding any other provision hereof, Parent and Purchaser expressly reserve the right (20th) business day after commencement of the Offer (determined but will have no obligation to), in accordance their sole discretion, subject to compliance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to Act and in accordance with the terms of this Agreement, to waive the “Expiration Date”)Financing Condition. Unless otherwise stated, all references in this Agreement to Company Common Stock and Shares shall be deemed to include the associated preferred stock purchase rights (the "RIGHTS") issued pursuant to the Rights Agreement.
(b) Notwithstanding the foregoing, (x) Merger Subsidiary shall extend in the Offer 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 and (y) if event that any condition to the Offer is set forth in ANNEX A shall not have been satisfied or waived on at the scheduled or any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights extended expiration date of the parties Offer, Purchaser shall (unless otherwise notified by the Company in Article 11writing), and Purchaser shall otherwise be entitled to, extend the expiration date of the Offer for one or more periods (each in the reasonable judgment increments of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary up to be required to satisfy such conditions but in any event not in excess of twenty (20) 5 business days eacheach (unless otherwise agreed by Parent and the Company) until the earliest to occur of (x) the satisfaction or waiver of each such conditions are satisfied or waivedcondition and (y) the termination of this Agreement in accordance with its terms; providedPROVIDED, in each caseHOWEVER, that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond as provided in this sentence if any such condition (other than the termination Financing Condition) is incapable of this Agreementbeing satisfied. If upon the acceptance for payment ofIn addition, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to without limiting the foregoing, including Purchaser may, without the requirements consent of Rule 14d-11the Company, extend the expiration date of the Offer (i) as required by applicable law, (ii) pursuant to Section 7.10, and upon (iii) for up to 5 business days if, on the terms and subject to the conditions scheduled or any extended expiration date of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and not withdrawn represent more than 80% but less than 90% of the outstanding Shares, notwithstanding that all the conditions to the Offer set forth in ANNEX A have been satisfied, so long as Purchaser waives the further satisfaction of any of the conditions to the Offer (other than the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”condition set forth in paragraph (a) and (ii) validly tendered in the Subsequent Offering Periodof Annex A).
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced (the "Offer Commencement Date"), Parent and Merger Subsidiary Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"SCHEDULE 14D-1") with respect to the Offer. The Schedule TO”) that 14D-1 shall include contain or shall incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"), . Parent and Purchaser shall cause mail the applicable Offer Documents to be disseminated to all holders the stockholders of Sharesthe Company as soon as practicable after filing with the SEC. The Company Offer Documents shall promptly upon request comply in all material respects with the provisions of applicable federal securities laws. Each of Parent and Merger Subsidiary provide Parent in writing with all information concerning Purchaser, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, shall correct 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 which shall have become (or shall become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is prior to their being filed with with, or sent to, the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments such comments.
(d) Parent shall provide or other communications and cause to be provided to Purchaser on a timely basis the funds necessary to purchase all the Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
(iie) 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 Purchaser shall be givenentitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as be required to be deducted and withheld with respect to the making of such payment under the Code or under any provision of state, it being understood local or foreign tax law; PROVIDED, HOWEVER, that Purchaser shall promptly pay any amounts deducted and withheld hereunder to the applicable Governmental Entity, shall promptly file all Tax Returns and reports required to be filed in respect of such deductions and withholdings, and shall promptly provide to the Company proof of such payment and its counsel shall provide any comments thereon as soon as reasonably practicable)a copy of all such Tax Returns and reports.
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 7.1 and (ii) no event set forth in Annex A hereto shall have occurred and be continuing that(unless such event shall have been waived by Parent or the Company, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Ias applicable), as promptly as practicable after following the effective date hereof and of the Registration Statement referred to in any event within ten Section 1.1(d) below (10) Business Days after the date hereof"EFFECTIVE DATE"), Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase for any and all of the outstanding Shares at the Offer Pricevarious Exchange Ratios contemplated by Section 1.1(b) below. The obligation of Parent to first issue shares of Parent Common Stock in exchange for Shares pursuant to the Offer (the "FIRST CLOSING") shall be subject only to (1i) the valid acceptances of the Offer (and not, where permitted, withdrawn) by holders of at least ninety percent (90%) in nominal value of each of the issued B Preferred Shares, the issued A Ordinary Shares and the issued Ordinary Shares to which the condition that there Offer relates (the "MINIMUM CONDITION") (and the expression "Offer" shall be validly tendered construed in accordance with section 428 of the United Kingdom Companies Act 1985 (the "COMPANIES ACT")), and not withdrawn (ii) the satisfaction or waiver (in accordance with the terms of the Offer, prior to the Expiration Date this Section 1.1 (as defined belowa), a number ) of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves A. Parent shall not make any changes in the terms and conditions of the Offer without the prior written approval of the Company. It is agreed that the conditions set forth in Section 1 of Annex A are for the sole benefit of Parent and may be waived by Parent (and only by Parent), in whole or in part at any time and from time to time, in its sole discretion. It is agreed that the conditions set forth in Section 2 of Annex A are for the sole benefit of the Company and may be waived by the Company (and only by the Company), in whole or in part at any time and from time to time, in its sole discretion. To evidence the satisfaction of the conditions set forth in Section 2 of Annex A, the Company shall deliver to Parent on the First Closing Date (as defined below) a certificate, executed by the Chief Executive Officer of the Company, indicating the Company's concurrence that the conditions set forth in Section 2 of Annex A shall have been satisfied. Parent shall not be permitted to issue Parent Common Stock in exchange for Shares pursuant to the Offer until after it has received the certificate described in the preceding sentence from the Company. The failure by Parent or the Company, as the case may be, at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to waive time.
(b) The consideration to be offered by Parent to the holders of Ordinary Shares, A Ordinary Shares and B Preferred Shares in the Offer shall be as follows:
(i) Each holder of Ordinary Share(s) shall be entitled to receive 0.88637 of a share of Parent Common Stock for each Ordinary Share held (the "ORDINARY SHARE EXCHANGE RATIO").
(ii) Each holder of A Ordinary Share(s) shall be entitled to receive 2.75326 shares of Parent Common Stock for each A Ordinary Share held (the "A ORDINARY SHARE EXCHANGE RATIO").
(iii) Each holder of B Preferred Share(s) shall be entitled to receive 2.61560 shares of Parent Common Stock for each B Preferred Share held (the "B PREFERRED EXCHANGE RATIO" and, together with the Ordinary Share Exchange Ratio and the A Ordinary Share Exchange Ratio, the "EXCHANGE RATIOS"); provided, however, that the maximum number of shares of Parent Common Stock to be issued by Parent (x) pursuant to the Offers and (y) in connection with the Compulsory Acquisition contemplated by Section 5.7 hereof, to the extent applicable, and (z) upon exercise (whenever exercised) of the options to acquire Parent Common Stock received in exchange for Company Options (as defined below) pursuant to the Option Offer (as defined below), is 29,500,000 (the "TOTAL SHARE CONSIDERATION"). Section 1.1(b) of the Company Disclosure Letter sets forth the proposed allocation of the Total Share Consideration among the holders of Shares and/or Company Options as of the date hereof; provided, however, that the Company may, prior to the commencement of the Offer by Parent pursuant to Section 1.1(a) above, provide a written update of such allocation to Parent, and Parent shall be entitled to rely exclusively on such written update in allocating the Total Share Consideration among the holders of Shares and/or Company Options, as appropriate. In the event that the total number of shares of Parent Common Stock issued, or to be issued, pursuant to the transactions identified in (x), (y) and (z) of this Section 1.1(b) above following application of the Exchange Ratios set forth in Section 1.1(b)(i)-(iii) above shall be less than the Total Share Consideration, then an additional number of shares of Parent Common Stock shall be issued on a pro rata basis to the holders of Shares and Company Options so that the total number of shares of Parent Common Stock issued, or to be issued, pursuant to the transactions identified in (x), (y) and (z) of this Section 1.1(b) shall be equal to the Total Share Consideration. Each holder's "pro rata" amount shall be a fraction, the numerator of which is the number of shares of Parent Common Stock issued, or to be issued, to such holder of Shares in the Offer or Company Options under the Option Offer and the denominator of which is the number of shares of Parent Common Stock issued, or to be issued, to all holders of Shares in the Offer and all holders of Company Options in the Option Offer.
(c) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is the later of (i) twenty (20) Business Days after the date the Offer is commenced and (ii) five (5) Business Days following the date on which the Parent Stockholder Approvals (as defined in Section 1.1(f) hereof) shall have been received; provided, however, that (i) Parent shall (A) from time to time, extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to the Offer and to make any change shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, but not beyond the Final Date (as defined in the terms of or conditions to the Offer; provided, that without the prior written consent of the CompanySection 7.1(b)(ii)), (iB) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC") applicable to the Offer, and (C) extend the Offer or the staff thereof applicable Option Offer for any period required by the rules of any Company Share Option Scheme. Subject to the terms and conditions of the Offer and this Agreement, on the First Closing Date (as defined below) and each Subsequent Closing Date (as defined below) Parent shall issue shares of Parent Common Stock in exchange for all Shares in respect of which valid acceptances have been received by such date (and not, where permitted, withdrawn) pursuant to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, compulsory acquisition procedures set forth in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of SharesSection 5.7. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel "FIRST CLOSING DATE" shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).second Business Day following
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex II hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five business days following the public announcement of the terms of this Agreement, commence an offer (and Parent shall cause Merger Subsidiary tothe "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at shares (the Offer Price"Shares") of common stock, $0.01 par value, of the Company (the "Common Stock")at a price of $42 per Share, net to the seller in cash. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below), expiration date of the Offer and not withdrawn a number of Shares thatwhich, together with the Shares then owned by Parent and/or Merger SubsidiaryBuyer, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) basis (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. I hereto. Merger Subsidiary expressly reserves the right to waive the Minimum Condition or any of the other conditions to the Offer and to make any change in the terms of or conditions to of the Offer; provided, provided that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which changes the form of consideration to be paid, paid or decreases the Offer Price price per Share or the number of Shares sought in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex I or modifies the amends such conditions set forth in Annex I, or amends any other term of the Offer in any a manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC (as defined in Section 4.7) a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal (together with all any supplements or amendments and supplements thereto and including exhibits thereto, collectively the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Buyer and the Company each 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent Buyer and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is 14D-1 prior to its being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Merger Agreement (Compaq Dallas Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after (but in no event later than five business days following the date hereof and in any event within ten (10) Business Days after public announcement of the date execution hereof), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (the Offer "EXCHANGE ACT")), an offer to purchase any and all of the Company's outstanding Shares shares of common stock, par value $0.01 per share (the "SHARES"), at the Offer Price. The Offer shall be subject only (1) a price of $6.50 per Share, net to the condition that there shall seller in cash (as such offer may be validly tendered and not withdrawn amended in accordance with the terms of this Agreement, the Offer"OFFER"), prior subject to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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; providedA hereto. Purchaser will not, that without the prior written consent of the Company, (i) decrease or change the Minimum Condition may not be waived and form of the consideration payable in the Offer, (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or decrease the number of Shares sought in pursuant to the Offer, imposes (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Parent in its sole discretion may waive any of the conditions to the Offer in addition to those other than the condition set forth in Annex I or modifies clause (1) of ANNEX A, which may not be waived without the conditions set forth in Annex ICompany's prior written consent, or amends (v) make any other term change in the terms or conditions of the Offer in any manner that is adverse to the holders of Shares in the reasonable judgment of the CompanyShares. 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 Exchange Act) (such datePurchaser will, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with on the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights prior satisfaction or waiver of the parties in Article 11conditions to the Offer, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept for payment of, and payment for, pay for all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions promptly after expiration of the Offer; PROVIDED that, Merger Subsidiary shallPurchaser may extend the Offer up to the tenth business day after the later of (i) the initial expiration date of the Offer and (ii) the date on which all such conditions shall first have been satisfied or waived. The Company agrees that no Shares held by the Company will be tendered to Parent pursuant to the Offer; PROVIDED, and Parent that Shares held beneficially or of record by any plan, program or arrangement sponsored or maintained for the benefit of employees of the Company shall cause it to (including by providing or causing not be deemed to be provided held by the Company, regardless of whether the Company has, directly or indirectly, the power to Merger Subsidiary on a timely basis vote or control the necessary funds), disposition of such Shares. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for, as promptly as practicable after for Shares validly tendered on or prior to the expiration of the Offer, all Shares (i) validly tendered Offer and not withdrawn pursuant shall be subject only to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered conditions set forth in the Subsequent Offering PeriodAnnex A hereto.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file or cause to be filed with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”"SCHEDULE 14D-1") that with respect to the Offer, which shall include contain the summary term sheet required thereby and, as exhibits, the Offer offer to Purchase purchase and a form of related letter of transmittal and summary advertisement other ancillary offer documents and other appropriate ancillary instruments pursuant to which the Offer documents will be made (collectively, together with any supplements or amendments or supplements thereto, the “Offer Documents”"OFFER DOCUMENTS"), . Parent and shall cause Purchaser will disseminate the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees will 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) becomes false or misleading in any material respect. respect and Parent and Merger Subsidiary shall Purchaser will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawslaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time be received from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications thereof and (ii) to further provide the Company with a reasonable opportunity to participate in all substantive communications with 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, it being understood that the Company SEC and its counsel shall provide any comments thereon as soon as reasonably practicable)staff relating to the Offer Documents, the Offer or the transactions contemplated thereby.
Appears in 1 contract
Sources: Merger Agreement (Pacific Rehabilitation & Sports Medicine Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article IX, Merger Sub shall, and be continuing thatParent shall cause Merger Sub to, had commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after following the date hereof and in any event within ten (10) Business Days after the date hereof. The obligation of Merger Sub to, Merger Subsidiary shall (and of Parent shall to cause Merger Subsidiary Sub to) commence (within the meaning , accept for payment shares of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Company Common Stock validly tendered pursuant to the Offer and to purchase any and all of the outstanding Shares at pay the Offer Price. The Offer Price for each such tendered and not subsequently withdrawn share shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms satisfaction or waiver by Parent or Merger Sub of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. A (such conditions, as they may be amended in accordance with this Agreement, the “Tender Offer Conditions”). Parent on behalf of Merger Subsidiary Sub expressly reserves the right from time to time, subject to Section 2.1(b), to waive in whole or in part any of the conditions such condition, to increase the Offer Price payable in the Offer, and to make any change in other changes to the terms and conditions of or conditions to the Offer; provided, however, that without the prior written consent of the Company, Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition may not be waived and (as defined in Annex A), (ii) no change may be made that changes the form of consideration to be paidpaid pursuant to the Offer, decreases (iii) decrease the Offer Price or the number of Shares sought payable in the Offer, imposes (iv) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose conditions to the Offer that are in addition to those set forth in Annex I A hereto, (vi) make any change in the Offer that would require an extension or modifies delay of the conditions set forth then current Expiration Date; provided, however, that this clause (vi) shall not limit the ability of Parent or Merger Sub to extend the Expiration Date in Annex Iaccordance with Section 2.1(b), (vii) amend or modify the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition), or amends (viii) amend or modify any other term of the Offer in any manner adverse to the holders of Shares shares of Company Common Stock in the reasonable judgment their capacities as holders of the Company. shares of Company Common Stock.
(b) The initial expiration date of the Offer shall be the twentieth (20th) business day Business Day after commencement of the date that the Offer is commenced (determined in accordance with pursuant to Rule 14d-1(g)(3) and Rule 14d-2 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary Sub shall not terminate or withdraw the Offer prior to its Expiration Dateother than in connection with (x) the effective termination of this Agreement in accordance with Article IX hereof or (y) an Offer Termination in accordance with Section 2.1(f). Notwithstanding the foregoing, unless this Agreement is terminated in accordance with Article 11 IX hereof. 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 Sub shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not withdrawn pursuant satisfied or waived by Merger Sub, for such periods of up to five (5) Business Days at a time (or such other period as shall be consented to in writing by the Company) as Merger Sub may deem reasonably necessary, but, except as required by any applicable Law, rule, regulation, interpretation or position of NASDAQ, the SEC or the staff of the SEC (the “SEC Staff”) applicable to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered including in connection with an increase in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”Price), and shall cause in no event may the Offer Documents Expiration Date be extended pursuant to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with this clause (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).date
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated and none of the events set forth in Section (a) through (i) of Annex A attached hereto and made a part hereof ("Annex A") shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and shall not have been waived by the Merger Sub), the Merger Sub shall, and the Parent shall cause the Merger Subsidiary Sub to) , commence (within the meaning of Rule 14d-2 under of the ▇▇▇▇ ▇▇▇Exchange Act (as defined in Section 2.9(a)(ii))) the Offer to purchase any and all as promptly as reasonably practicable after the date hereof. The obligation of the outstanding Merger Sub to accept for payment and pay for the Shares at tendered pursuant to the Offer Price. The Offer shall be subject only (1) to the satisfaction of the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a expiration of the Offer that number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, which represents at least a majority of the total number of then outstanding Shares outstanding on a fully fully-diluted basisbasis (taking into account all Shares issued and outstanding as of the expiration of the Offer and all additional Shares that would be issued and outstanding if all vested options, calculated in accordance with Section 3.5(bwarrants or rights to purchase Shares at a price per Share less than the Offer Consideration were exercised) (the “"Minimum Condition”), ") and (2) to the satisfaction or waiver by the Merger Sub of the other conditions set forth in Annex I. A (the Minimum Condition and the conditions set forth in Annex A collectively, the "Offer Conditions"). The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 3.1(a)) will be tendered to the Merger Subsidiary Sub pursuant to the Offer. The Merger Sub expressly reserves the right to waive in whole or in part any of the conditions Offer Conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, however, that no change may be made without the prior written consent of the CompanyCompany which decreases the price per Share payable in the Offer, (i) reduces the Minimum Condition may not maximum number of Shares to be waived and (ii) no change may be made that purchased in the Offer, changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid 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 IA, waives or amends changes the Minimum Condition or makes any other term change in the terms and conditions of the Offer that is in any manner adverse to the holders of Shares in or, except as provided below, extends the reasonable judgment Offer. Subject to the terms of the CompanyOffer and this Agreement and the satisfaction of the Minimum Condition and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A as of any expiration date of the Offer, the Merger Sub shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable Legal Requirements (as defined in Section 3.2(d)). The initial scheduled expiration date of the Offer shall initially be 20 Business Days (as defined in Section 9.3(e)) following the twentieth (20th) business day after date of commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under counting for such purposes the Exchange Act) (day the Offer is commenced as the first day of such dateperiod), or and the Offer shall be extended until such subsequent time as the Offer Conditions are satisfied or, to the extent permitted by this Agreement, waived; provided, however, that the scheduled expiration date to which the expiration of the Offer shall not be extended beyond 75 calendar days following the date of commencement of the Offer (counting for such purposes the day the Offer is extended pursuant to commenced as the first day of such period) without the mutual written consent of the Company and in accordance with the terms of this AgreementMerger Sub (such date as may be so extended, the “Expiration "Outside Offer Date”"). Notwithstanding the foregoing, the Merger Sub may, without the consent of the Company, (xi) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or United States Securities and Exchange Commission (the "SEC"), the staff thereof or the Nasdaq National Market ("NASDAQ") applicable to the Offer (but in no event beyond the Outside Offer Date) or any period required by Applicable Law and (yii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer provide for one or more periods (each "subsequent offering periods" of up to an additional 20 Business Days in the reasonable judgment of aggregate in accordance with and to the extent permitted by Rule 14d-11 under the Exchange Act. Parent and Merger Subsidiary for Sub shall not terminate the minimum period of time reasonably expected by Merger Subsidiary Offer prior to any scheduled expiration date (as the same may be extended or required to be required extended) without the written consent of the Company except in the event that Parent and Merger Sub terminate this Agreement pursuant to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, Section 8.1. At the time that the Merger Subsidiary shall not be required Sub becomes obligated to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept for payment of, and payment for, all pay for Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, Parent shall provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior cause to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject be provided to the foregoingMerger Sub the funds necessary to pay for all Shares that the Merger Sub becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer Consideration shall, including subject to any required withholding of Taxes (as defined in Section 9.3(h)), be net to the requirements of Rule 14d-11seller in cash, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of the commencement of the Offer, Parent and the Merger Subsidiary Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all exhibits, amendments and supplements thereto, the "Schedule TO") with respect to the Offer (together with all amendments Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and supplements thereto and including exhibits thereto, forms of the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectively, together with any all amendments or and supplements thereto, the “"Offer Documents”"), . The Parent and the Merger Sub shall cause the Offer Documents to be disseminated to all the holders of Sharesthe Shares as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and the Merger Subsidiary provide Parent in writing with all information concerning Sub, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, will 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent , and the Merger Subsidiary shall Sub will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawslaws and the DGCL. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC. In addition, and the Parent and the Merger Subsidiary shall give reasonable and good faith consideration Sub agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communicationscomments, whether written or oral, that Parent, the Parent or the Merger Subsidiary Sub or either of their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that consult with the Company and its counsel prior to responding to any such comments (and provide the Company and its counsel with copies of any such written response and telephonic notification of any such verbal response). If the Offer is terminated or withdrawn by the Merger Sub, the Parent and the Merger Sub shall provide any comments thereon promptly use their respective best efforts to cause the Paying Agent to cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as soon as reasonably practicabledefined in Section 2.7(a)).
Appears in 1 contract
Sources: Merger Agreement (Cgi Group Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing (and shall not have been waived by Purchaser), Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) but in no event later than five business days after the initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "MINIMUM CONDITION") that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with when added to the Shares then already owned by Parent and/or Merger SubsidiaryParent, represents shall constitute at least a majority of the total number of then outstanding Shares outstanding on a fully diluted basisbasis (including, calculated in accordance with Section 3.5(bwithout 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)) (shall have been validly tendered and not withdrawn prior to the “Minimum Condition”), expiration of the Offer and (2) also shall be subject to the satisfaction or waiver of each of the other conditions set forth in Annex I. Merger Subsidiary 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 may be made which decreases the price per Share payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer, modifies the conditions to the Offer and to make any change set forth in the terms of Annex A hereto or imposes conditions to the Offer other than those set forth in Annex A hereto or, except as provided in the next sentence, extends the Offer; provided. Notwithstanding the foregoing, that Purchaser may, without the prior written consent of the Company, (i) extend the Minimum Condition may Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be waived and satisfied or waived, (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer, or any period required by Applicable Law and (yiii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 5 business days eachbeyond the latest applicable date that would otherwise be permitted under clause (i) until or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment, and to pay for, the Shares are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the OfferOffer equals 80 percent or more, Merger Subsidiary has not acquired the Requisite Short Form Merger Sharesbut less than 90 percent, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act outstanding Shares. The Per Share Amount shall, subject to applicable withholding of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Datetaxes, unless this Agreement is terminated in accordance with Article 11 hereof. Subject be net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Subsidiary Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis Purchaser to, promptly after expiration of the necessary funds)Offer, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodwithdrawn.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"SCHEDULE 14D-1") with respect to the Offer. The Schedule TO”14D-1 shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") that shall include and forms of the related letter of transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of such other documents, together with all supplements and amendments thereto, being, collectively, the "OFFER DOCUMENTS"). Purchaser shall disseminate the Offer to Purchase, the related letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Sharesthe extent required by applicable federal securities laws. The Company shall promptly upon request Offer Documents will comply in all material respects with the provisions of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documentsapplicable federal securities laws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information which shall have become (or shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company .
(c) Purchaser and its counsel shall be given a reasonable opportunity Parent will file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to review and comment on the Schedule TO and the Offer Documents each time before any such document is required to be filed with pursuant to Chapter 80B of the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Minnesota Statutes.
Appears in 1 contract
Sources: Merger Agreement (Spine Tech Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex II hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five business days following the public announcement of the terms of this Agreement, commence an offer (and Parent shall cause Merger Subsidiary tothe "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares of the Company at a price of $34.00 per Share, net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there shall be validly have been tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares thatwhich, together with the Shares then owned by Parent and/or Merger SubsidiaryBuyer and its affiliates, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) basis (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. I hereto. Merger Subsidiary expressly reserves the right to waive any of the other conditions to the Offer (other than the Minimum Condition) and to make any change in the terms of or conditions to of the Offer; provided, provided that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which changes the form of consideration to be paid, paid or decreases the Offer Price 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 or modifies the conditions set forth in Annex I, or amends any other term the terms and conditions of the Offer in any a manner adverse to the holders of Shares Company or, except as provided in the reasonable judgment of next two sentences, extends the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Offer. Notwithstanding the foregoing, (x) Merger Subsidiary may, without the consent of the Company (i) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Merger Subsidiary's obligation to accept for payment and to pay for the Shares shall not be satisfied or waived, or (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. So long as this Agreement is in effect and the condition of the Offer or any period required by Applicable Law and set forth in clause (y) if any condition to of the Offer is first paragraph of Annex I has not been satisfied or waived on any scheduled Expiration Datewaived, Merger Subsidiary shall, subject to the rights of the parties in Article 11, shall extend the Offer from time to time for one a period or more successive periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary not to be required to satisfy such conditions but in any event not in excess of twenty (20) exceed 10 business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend after the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions previously scheduled expiration date of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and 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 14D-1 (the "Schedule TO 14D-1") with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer. The Schedule 13E-3, the “Schedule TO”) that shall include 14D-1 and the summary term sheet required thereby and, as exhibits, the Offer related offer to Purchase purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectivelytransmittal, together with any supplements or amendments or supplements thereto, are collectively referred to herein as the “"Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares". The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Buyer and the Company each 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO 14D-1 and the Offer Documents each time before any such document is Schedule 13E-3 prior to their being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Merger Agreement (Asa Holdings Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise Subject to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iof this Agreement, as promptly as practicable after Purchaser shall, and Parent shall cause 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 after from the date hereof), Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (the Offer within the meaning of Rule 14d-2 under the applicable rules and regulations of the SEC. The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer shall be subject 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, ▇▇▇▇▇▇ ▇. ▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer▇▇▇▇▇▇, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents would represent at least a majority of the total number of Fully Diluted Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Tender Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form satisfaction, or waiver by Parent or Purchaser, of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes other conditions to the Offer in addition to those and requirements set forth in Annex I or modifies Exhibit C as such conditions may be modified in accordance with the conditions set forth in Annex I, or amends any other term express terms of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Companythis Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth (20th) business day after Business Day following commencement of the Offer (determined in accordance with using Rule 14d-1(g)(3) under of the Exchange Act). Purchaser expressly reserves the right in its sole discretion to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Purchaser shall not (i) reduce the number of shares of the Company Common Stock subject to the Offer, (such dateii) reduce the Offer Price, (iii) waive or such subsequent date amend the Minimum Tender Condition, (iv) add to which the expiration conditions set forth in Exhibit C or modify any condition set forth in Exhibit C in any manner adverse to the Company or the holders 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 (vii) otherwise amend the Offer in any manner adverse to the Company or the holders of the Company Common Stock. The parties hereto agree to cooperate in good faith to modify the terms of the Offer is extended pursuant to as and in accordance with if required by the terms SEC. Notwithstanding any provision of this AgreementAgreement to the contrary, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary Purchaser shall extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; provided, however, that Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, extend the Offer or any period required by Applicable Law and beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with its terms, if at the otherwise scheduled expiration date of the Offer (yi) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Datesatisfied, Merger Subsidiary Purchaser shall, subject to the rights of the parties in Article 11and Parent shall cause Purchaser to, extend the Offer for one (1) or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act consecutive increments of not less than three (3) nor more than ten (10) business days immediately following Business Days each (or for such longer period as may be agreed to by the Expiration 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 a date that is not more than (2) two Business Days after the end of the Marketing Period; provided, however, that Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, extend the Offer beyond the Outside Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Purchaser to, accept for payment and pay for, as for (subject to any withholding of Tax pursuant to Section 3.2(e)) all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”as it may be extended and re-extended in accordance with this Section 2.1(a)). Nothing contained in this Section 2.1(a) and (ii) validly tendered shall affect any termination rights in the Subsequent Offering PeriodArticle VIII.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary 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 TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that which shall include the summary term sheet required thereby and, as exhibits, the Offer contain an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and other appropriate ancillary the documents included therein pursuant to which the Offer documents (collectivelyshall be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), . Parent and shall Purchaser agree to take all steps necessary to cause the Offer Documents to be disseminated to all holders of Sharesshares of the Company Common Stock as and to the extent required by the Exchange Act. The Company shall promptly upon request of furnish to Parent and Merger Subsidiary provide Parent in writing with Purchaser all information concerning the Company that is required by the Exchange Act to be included set forth in the Schedule TO Offer Documents or the Offer Documentsreasonably requested by Parent and Purchaser for inclusion therein. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall 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. respect and to correct any material omissions therein; and each of Parent and Merger Subsidiary Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected amended or supplemented, to be disseminated to holders of Sharesthe Company’s stockholders, in each case, case as and to the extent required by applicable U.S. federal Federal securities lawsLaws. The Parent and Purchaser shall provide the Company and its counsel copies of any written comments, and shall be given inform the Company and its counsel of any oral comments or discussions, that Parent, Purchaser or their counsel may receive from or engage in with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments 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 the Schedule TO and the such Offer Documents each time before any such document is filed with or response (including the SECproposed final version thereof), and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith consideration to any comments made by the Company and or its counsel counsel.
(it being understood that c) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Purchaser becomes obligated to 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 its counsel Parent shall provide cause Purchaser to) promptly (and in any comments thereon as soon as reasonably practicableevent within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. Parent and Merger Subsidiary shall provide 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 its counsel with (i) shall cause any comments or other communicationsdepository acting on behalf of Purchaser to return, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from all tendered shares of the SEC or its staff with respect Company Common Stock to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)registered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that nothing Subject to the terms and conditions of this Agreement, the Offeror shall have occurred and be continuing that, had make the Offer been commencedby way of takeover bid circular on the terms and conditions set forth as Schedule 1.1(a) hereto, would give rise to a right to terminate 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. $24.00 for each Common Share of the Company; and (iii) the obligation of the Offeror to 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 Annex Ithe Offer, as promptly as practicable after the Offeror shall, on the first business day following the date hereof that the conditions set forth in the Offer are satisfied and in any event within ten (10) Business Days after the date hereofOfferor is duly authorized under applicable law, Merger Subsidiary shall accept for payment and pay for all Common Shares validly deposited (and Parent shall cause Merger Subsidiary tonot properly withdrawn) commence (within pursuant to the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer Offeror shall be use reasonable commercial efforts to consummate the Offer, subject only (1) to the condition that there shall be validly tendered terms and conditions thereof and this Agreement. The Offeror will not withdrawn in accordance with amend the terms of the Offer, prior to the Expiration Date other than (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2i) to increase the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right consideration payable thereunder, (ii) to waive any conditions thereof, (iii) to reduce the Minimum Condition, provided it cannot be reduced below 50% of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided, that outstanding Common Shares without the prior written consent of the Company; (iv) to otherwise amend any terms or conditions thereof, provided such amendment is not adverse to the Shareholders; or (iv) to extend the Minimum Condition may not be waived and expiry thereof.
(iid) no change may be made that changes If on the form of consideration to be paid, decreases first occasion on which the Offer Price or the number of Offeror has taken up any Common Shares sought in the Offer, imposes conditions pursuant to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends 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 Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary Offeror shall 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 SEC or the staff thereof applicable all reports of Common Shares tendered to the Offer or any period required by Applicable Law and (y) if any condition at the same time that such reports are provided to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering PeriodOfferor.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in ANNEX A shall have occurred and or be continuing thatexisting, had Merger Sub shall commence the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, but in no event later than five business days after the initial public announcement of Merger Subsidiary Sub's intention to commence the Offer. The obligation of Merger Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall only be subject to (and i) the condition (the "MINIMUM CONDITION") that at least the number of Shares that when added to the Shares already owned by Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all constitute a majority of the then outstanding Shares at the Offer Price. The Offer on a fully diluted basis shall be subject only (1) to the condition that there shall be have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), Offer and (2ii) to the satisfaction or waiver of the other conditions set forth in Annex I. ANNEX A. Merger Subsidiary Sub expressly reserves the right to waive any of such condition (other than the conditions Minimum Condition), to increase the price per Share payable in the Offer and to make any change other changes in the terms and conditions of or conditions to the Offer; providedPROVIDED, HOWEVER, that without unless Parent and Merger Sub shall have obtained the prior written consent approval of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that in the Offer which (i) decreases the price per Share payable in the Offer, (ii) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) changes or waives the Minimum Condition, or (v) modifies the conditions to the Offer set forth in ANNEX A or imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. ANNEX A. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary Per Share Amount shall, subject to the rights applicable withholding of the parties in Article 11taxes, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), Merger Subsidiary Sub shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant withdrawn; PROVIDED, HOWEVER, that notwithstanding the foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for up to 15 business days, and agrees on a one-time basis if all other conditions to the Offer have been met, to extend the expiration date for the Offer for 10 business days if on the relevant date of expiration at least 45% of the then outstanding Shares (the time at which Shares are first accepted for payment under calculated on a fully diluted basis) have been tendered and not withdrawn from the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"SCHEDULE 14D-1") with respect to the Offer. The Schedule TO”14D-1 shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") that shall include and forms of the related letter of transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"), and shall cause the . The Offer Documents to be disseminated to will comply in all holders material respects with the provisions of Sharesapplicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Schedule TO or the Offer Documents if and to the extent that such information which shall have become (or shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall Sub further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is prior to their being filed with with, or sent to, the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing thatIf (i) this Agreement has not been terminated in accordance with SECTION 8.1, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any (ii) none of the conditions set forth in Annex I, PARAGRAPHS (A) through (G) of APPENDIX A to this Agreement other than PARAGRAPH (F) (with respect to the representations and warranties as promptly as practicable of the Expiration Date) and PARAGRAPH (G) (with respect to obligations to be performed or agreements or covenants to be performed or complied with after the date hereof commencement of the Offer) shall have occurred (unless waived by Parent in its sole discretion) and in any event (iii) the Purchaser has received the Financing Letters then, within ten (10) five Business Days after following Purchaser's receipt of the date hereofFinancing Letters (the "OFFER Deadline"), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer shall be subject only (1) Subject to the condition that there shall be validly tendered Minimum Condition and not withdrawn in accordance with the terms subject to satisfaction or waiver of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves APPENDIX A to this Agreement, Purchaser shall consummate the right Offer in accordance with its terms and to waive any of the conditions accept for payment and pay for Shares tendered pursuant to the Offer promptly after Purchaser is legally permitted to do so under Applicable Law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to make any the Minimum Condition and the other conditions set forth in APPENDIX A to this Agreement and shall reflect, as appropriate, the other terms set forth in this Agreement. Unless previously approved by the Company in writing, no change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, Offer may be made (i) which decreases the Minimum Condition may not be waived and price per Share payable in the Offer, (ii) no change may be made that which changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex I APPENDIX A hereto or which modifies the conditions set forth in Annex IAPPENDIX A in a manner adverse to the holders of Shares, or (v) which amends any other term of the Offer in any a manner inconsistent with this Agreement and adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such dateShares, or such subsequent date to (vi) which extends the expiration of the Offer is extended pursuant beyond thirty (30) Business Days following the initial scheduled Expiration Date (the initial scheduled Expiration Date being 20 Business Days following the commencement of the Offer); PROVIDED, HOWEVER, that notwithstanding the foregoing, subject to and SECTION 8.1, if the conditions set forth in accordance with APPENDIX A are not satisfied or, to the terms of extent permitted by this Agreement, the “Expiration Date”). Notwithstanding the foregoingwaived, (x) Merger Subsidiary shall Purchaser will extend the Offer for any period required by any rule, regulation, interpretation or position from time to time until the earlier of (i) the consummation of the SEC or Offer and (ii) thirty (30) Business Days in the staff thereof applicable aggregate following the initial Expiration Date of the Offer. In addition, Purchaser may increase the Offer Price, and the Offer may be extended to the Offer or any period extent required by Applicable Law and (y) if any condition in connection with such increase, in each case without the consent of the Company. If all of the conditions to the Offer is not are satisfied or waived on any scheduled but the number of Shares validly tendered but not withdrawn, together with the Shares held by Parent and Purchaser, if any, is less than ninety percent (90%) of the then outstanding number of Shares, then upon the applicable Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 Purchaser shall, and Parent shall cause it Purchaser to, provide for "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 (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)20) Business Days (for all such extensions) and Purchaser shall, accept for payment and pay forParent shall cause Purchaser to, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to give the Offer (the time at which Shares are first accepted for payment under the Offerrequired notice of such extension, the “Acceptance Time”) and (ii) validly immediately accept and promptly pay for all Shares tendered in prior to the Subsequent Offering Perioddate of such extension.
(b) On the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Offer. The Schedule TO”) that shall include the summary term sheet required thereby andTO will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement advertisement.
(c) Parent and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to all holders of the Shares, in each case as and to the extent required by applicable securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning Purchaser, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, will 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall Purchaser will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 on the Schedule TO and each of the Offer Documents each time before any such document Offer Document is filed with the SECSEC or disseminated to holders of the Shares, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by as the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)case may be. Parent and Merger Subsidiary shall Purchaser will provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Documents, promptly after the receipt of those such 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)communications.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex Iaccordance with Section 8.01 hereof, as promptly as practicable after the date hereof and (but in any event within ten (10) Business Days after five business days of the date hereofof this Agreement), Merger Subsidiary shall (and Parent the Purchaser shall cause Merger Subsidiary to) the Sub to 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 Common Stock (including scrip) and Preferred Stock not owned by the Purchaser or the Sub at a price of $0.60 per share of Common Stock (including scrip), net to the seller in cash and $2.50 per share of Preferred Stock, net to the seller in cash, which offer shall remain open for at least 20 business days (the "Offer") and, subject to the conditions of the Offer set forth in Exhibit A hereto, shall use its best efforts to purchase any consummate the Offer, including, if necessary, conversion of convertible loans including a $3,500,000 credit facility and all options outstanding into Common Stock or Preferred Stock of the outstanding Shares at Company, as the Offer Pricecase may be, in order to consummate the Offer. The Offer obligations of the Purchaser and the Sub to consummate the Offer, to accept for payment and to pay for any shares of Common Stock and Preferred Stock tendered shall be subject only to those conditions set forth in Exhibit A hereto.
(1b) Neither the Purchaser nor the Sub will, without the prior written consent of the Board of Directors of the Company, decrease the amount or change the form of the consideration payable in the Offer, decrease the number of shares of Common Stock or Preferred Stock sought pursuant to the Offer, change the conditions to the Offer, impose additional conditions or terms to the Offer, amend or waive the condition that there shall be validly tendered and not properly withdrawn prior to the expiration of the Offer a number of shares of Common Stock and Preferred Stock which when added to the number of shares of Common Stock and Preferred Stock owned by the Purchaser and its affiliates constitutes at least two-thirds of the then outstanding shares of Common Stock and two- thirds of the then outstanding shares of Preferred Stock, respectively, on a fully diluted basis, or amend any term of the Offer in any manner adverse to holders of shares of Common Stock or Preferred Stock. Assuming the prior satisfaction or waiver of the conditions to the Offer, the Purchaser covenants and agrees to accept for payment and pay for, in accordance with the terms of the Offer, prior shares of Common Stock and Preferred Stock tendered pursuant to the Expiration Date Offer as soon as it is permitted to do so under applicable Law, provided that the Purchaser and the Sub shall have the right, upon consultation with the Company, to extend the Offer (if without such extension the Purchaser would be unable to consummate the Offer) to a date not later than the 35th business day following the commencement of the Offer or for such longer period as defined below)may be required by Law.
(c) Notwithstanding anything to the contrary in this Agreement, a number of Shares the Purchaser and the Sub further agree that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) subject to the other terms and conditions set forth of this Agreement, in Annex I. Merger Subsidiary expressly reserves the right to waive any of event that the conditions to the Offer set forth in paragraphs (a) or (b) of Exhibit A hereto shall occur or exist (and shall not have been waived), the Sub shall, at the Company's request, extend the Offer to make any change in a date not later than the terms 40th business day following the commencement of or conditions to the Offer; provided, that without however, if the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those condition set forth in Annex I or modifies paragraph (d)(i) of Exhibit A shall not have been satisfied, the conditions set forth in Annex IPurchaser and the Sub shall, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of if reasonably requested by the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) five business days each) until to enable the Company to cure such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodbreach.
(bd) On As soon as practicable on or before the date of commencement of the Offer, Parent but not later than five business days after the execution of this Agreement, the Purchaser and Merger Subsidiary the Sub shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal (together with all any supplements or amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include "Offer Documents"). The Offer Documents will comply in all material respects with the summary term sheet required thereby provisions of applicable federal securities Laws and, as exhibitson the date filed with the SEC and on the date first published, sent or given to the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company the Common Stock and Preferred Stock of the Company, shall promptly upon request not contain any untrue statement of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is a material fact or omit to state any material fact required to be included stated therein or necessary in order to make the Schedule TO statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Purchaser or the Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentThe Purchaser, Merger Subsidiary the Sub and the Company each 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 it shall be discovered to have been or to have become (or shall become known to be) false or misleading in any material respect. Parent respect and Merger Subsidiary shall the Purchaser and the Sub each further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Sharesthe Common Stock and Preferred Stock of the Company, in each case, case as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO Purchaser and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration Sub agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel in writing with (i) any comments or other communicationsthe Purchaser, whether written or oral, that Parent, Merger Subsidiary the Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing thatcontinuing, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "EXCHANGE ACT")) the Offer to purchase any and all of as promptly as practicable following the outstanding Shares at date hereof (but in no case later than ten business days from the Offer Pricedate hereof). The Offer shall be subject only (1) obligations of Purchaser to the condition that there shall be accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with the terms requirements of the Offer, this Section 1.1(a)) shall be subject only to (i) there being validly tendered and not withdrawn prior to the Expiration Date (as defined below), a expiration of the Offer that number of Shares thatwhich, together with the Shares then owned by Parent and/or Merger Subsidiaryor Purchaser (after giving effect to shares subject to purchase under the Stockholders Agreement, but not the Purchaser Option), represents at least a majority two-thirds of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) Fully Diluted Basis (the “Minimum Condition”"MINIMUM CONDITION"), ; and (2ii) to the other conditions set forth in Annex I. Merger Subsidiary I hereto. As used in this Agreement, "FULLY DILUTED BASIS" shall refer to the number of Shares issued and outstanding at any time after taking into account all Shares issuable upon the conversion of convertible securities or upon the exercise of any options, warrants or rights to purchase shares of Company Capital Stock (for which the applicable per share exercise price is less than the Offer Price). Subject to the prior satisfaction or waiver by Parent 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, the Minimum Condition and the other conditions set forth in Annex I hereto. Parent expressly reserves the right to waive any of the conditions such conditions, to increase the Offer Price and to make any change other changes in the terms of or conditions to the Offer; providedprovided however, that without Purchaser shall not, and Parent shall cause Purchaser not to, decrease the prior written consent of the CompanyOffer Price, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the Offer Price or decrease the number of Shares sought in the Offer, imposes impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer in addition to those (the "INITIAL EXPIRATION DATE") except as set forth in Annex I or modifies the conditions set forth in Annex Ibelow, or amends amend any other term condition of the Offer in any manner adverse to the holders of Shares the Shares, in each case without the reasonable judgment prior written consent of the Company. 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 Exchange Act) Company (such date, consent to be authorized by the Company Board of Directors or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”a duly authorized committee thereof). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer beyond the Initial Expiration Date if, at any scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept Shares for payment shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC United States Securities and Exchange Commission ("SEC"), or the staff thereof thereof, applicable to the Offer Offer, or any period required by Applicable Law and (yiii) if any condition to the Offer is not satisfied extend (or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend re-extend) the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of more than twenty (20) business days each(taking into account all such extensions and re-extensions) until beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived; provided, in each case, that Merger Subsidiary but there shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary on a Fully Diluted Basis to permit the Merger to be effected without a meeting of the Company's stockholders in accordance with the DGCL; provided that Purchaser (in connection with any extension or re-extension under clause (iii)) meets the time at which Shares are first accepted for payment requirements of Rule 14d-l 1 under the OfferExchange Act. In addition, the “Acceptance Time”) Offer Price may be increased and (ii) validly tendered the Offer may be extended to the extent required by applicable law in connection with such increase, in each case without the Subsequent Offering Periodconsent of the Company.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act ("REGULATION M-A"), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “"SCHEDULE TO"). The Schedule TO”) that TO shall include the summary term sheet required thereby under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “"OFFER DOCUMENTS"). The Company hereby consents to the inclusion in the Offer Documents”), Documents of the recommendation referred to in clause (iii) of Section 3.24 and shall the approval of the Board of Directors referred to in Section 3.24. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to all holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning Purchaser, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to 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 it shall have become (or shall become known to be) false or misleading in any material respectrespect or as otherwise required by law. Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration Purchaser agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments such comments, and any written or other communications and oral responses thereto.
(iic) 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, it being understood that the Company and its counsel shall provide or cause to be provided to Purchaser upon expiration of the Offer or any comments thereon subsequent extension thereof, as soon as reasonably practicable)applicable, all funds necessary to immediately accept for payment, and pay for, any shares of Company Common Stock that are validly tendered and not withdrawn pursuant to the Offer and that Purchaser is permitted to accept for payment under applicable law pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Signalsoft Corp)
The Offer. (a) Provided only that nothing (i) this Agreement shall not have occurred and be continuing thatterminated in accordance with its terms, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any (ii) none of the conditions events set forth in Annex Iclause (iii)(a) of Annex A shall have occurred, (iii) there being no Law or Order enjoining, restraining or otherwise prohibiting the commencement of the Offer and (iv) the Company (A) has timely provided any information required to be provided by it pursuant to Section 2.01(g) and (B) is prepared in accordance with Section 2.02(b) to file with the SEC, and to disseminate to holders of Company Shares, the Schedule 14D-9 as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereofwhen required by Section 2.02(b), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer as promptly as reasonably practicable, but no later than 10 business days (commencing with the first business day after the date of this Agreement), after the date hereof. Following such commencement, each of Parent and Purchaser shall consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of Purchaser to accept for payment, purchase and pay for any and all of the outstanding Company Shares at tendered pursuant to the Offer Price. The Offer (and not validly withdrawn) shall be solely subject only (1) to the satisfaction or waiver pursuant to the terms hereof of (x) the condition (the “Minimum Condition”) that there shall be at least that number of Company Shares validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined belowother than Company Shares tendered by guaranteed delivery where actual delivery has not occurred), a number of when added to any Company Shares that, together with the Shares then already owned by Parent and/or Merger Subsidiaryor any of its controlled Subsidiaries, represents at least if any, equal a majority of the total number outstanding Company Shares as of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (immediately prior to the “Minimum Condition”), Acceptance Time and (2y) to the other conditions set forth in Annex I. Merger Subsidiary A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). To the extent permitted by Law, Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any of such condition (other than the conditions Minimum Condition which may not be amended or waived), to increase the Offer price per Company Share payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) Company no change may be made that decreases the Per Share Amount (except as provided in Section 2.01(h)), changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, imposes adds to the conditions to the Offer, decreases the number of Company Shares sought to be purchased in the Offer, extends the Offer other than in addition a manner pursuant to those set forth and in Annex I accordance with the terms of this Section 2.01 or supplements, modifies the conditions set forth in Annex I, or amends any other term of condition to the Offer in any manner that broadens such conditions or is adverse to the holders of Shares in Company Shares.
(c) Subject to the reasonable judgment of the Company. The initial expiration date of terms and conditions thereof, the Offer shall be remain open until the twentieth (20th) time that is one minute following 11:59 p.m., New York City time, on the date that is at the end of the 20th business day after commencement of beginning with (and including) the date that the Offer is commenced (as determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). , unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.01 or as required by applicable Law or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(d) Notwithstanding the foregoingforegoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 9.01, (xi) Merger Subsidiary Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer and (ii) if, on the initial Expiration Date or any period required subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall (if so requested by Applicable Law the Company) extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (yii) of this Section 2.01(d), (A) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties events set forth in Article 11, extend clause (iii)(a) of Annex A shall have occurred and not been waived or cured on or before the initial Expiration Date or the end of any Additional Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; providedPeriod, in each case, that Merger Subsidiary no event shall not Purchaser be required to extend the Offer beyond the termination initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 30 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Agreement. If upon Section 2.01(d) shall not be deemed to impair, limit or otherwise restrict in any manner the acceptance for payment ofright of Parent to terminate this Agreement pursuant to Section 9.01.
(e) Purchaser shall not, and payment forParent shall cause Purchaser not to, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its any scheduled Expiration DateDate without the prior written consent of the Company, unless except if this Agreement is terminated pursuant to Section 9.01. In the event that this Agreement is terminated pursuant to Section 9.01, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Purchaser in accordance with Article 11 hereof. Subject the terms of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) promptly return, and shall cause any depositary acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Company Shares to the foregoingregistered holders thereof and Purchaser shall not (and Parent shall cause Purchaser not to) accept any Company Shares pursuant to the Offer.
(f) The Per Share Amount shall, including subject to applicable withholding of Taxes, be paid net to the requirements of Rule 14d-11applicable seller in cash, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreement Purchaser, Merger Subsidiary shallor Parent on Purchaser’s behalf, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as for all Company Shares validly tendered and not withdrawn promptly as practicable after following the expiration of the Offer; provided, all however, that without the prior written consent of the Company, Purchaser shall not accept for payment or pay for any Company Shares (i) validly tendered and not withdrawn pursuant if, as a result, Purchaser would acquire less than the number of Company Shares necessary to satisfy the Offer (the Minimum Condition. The time at which Shares are Purchaser first accepted accepts for payment under the Offer, Company Shares tendered in the Offer is referred to as the “Acceptance Time”) .” If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and (ii) validly tendered in that the Subsequent Offering Periodperson requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(bg) On the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file 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 with respect to the Offer. The Schedule TO shall include contain or shall incorporate by reference an offer to purchase (the summary term sheet required thereby and, as exhibits“Offer to Purchase”) and form of the related letter of transmittal and any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all exhibits, supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”), and . Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to all holders of Company Shares in all material respects to the extent required by applicable federal securities Laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities Laws; provided, that no covenant is made by Parent or Purchaser with respect to information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Offer Documents. 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 in any material respect, and Parent and Purchaser further agree to use reasonable best efforts to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Company Shares, in each case in compliance in all material respects with the applicable requirements of federal securities Laws. The Company shall promptly upon request of furnish to Purchaser or Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respectaction contemplated by this Section 2.01(g). Parent and Merger Subsidiary Purchaser shall cause give the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC, and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. In addition, Parent and Merger Subsidiary shall Purchaser agree to (i) provide the Company and its counsel in writing with (i) any written comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and such comments, (ii) a use reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and best efforts to provide a reasonably detailed description of any oral comments on that response Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (to which reasonable and good faith consideration shall be giveniii) unless there has been a Change in Recommendation, it being understood that provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(h) If, between the date of this Agreement and the Acceptance Time, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall provide any comments thereon as soon as reasonably practicable)be adjusted to the extent appropriate.
Appears in 1 contract
Sources: Merger Agreement (Resonant Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events or conditions set forth in Annex I hereto (other than subsection (i) therein) shall have occurred and be continuing that, had the Offer and not have been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iwaived by Parent or Purchaser, as promptly as reasonably practicable after the date hereof and and, in any event event, within ten (10) Business Days after of the date hereofof this Agreement, Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) the Offer to purchase any and for cash all of the outstanding Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not properly withdrawn shall be subject only to (1i) to the condition that there shall be being validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Shares which represents a majority of the Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, the Purchaser shall (and Parent shall cause Purchaser to), in accordance with the terms of the Offer, prior to consummate the Expiration Date (as defined below), a number of Offer and accept for payment and pay for all Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), validly tendered and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions not properly withdrawn pursuant to the Offer and to make any change in the terms promptly after expiration of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to which shall initially be the Offer in addition to those set forth in Annex I or modifies 20th Business Day following the conditions set forth in Annex I, or amends any other term commencement of the Offer in any manner adverse to Offer, provided, however, that (x) if on the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement or on any subsequent scheduled expiration date of the Offer (determined as extended in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such datethis Agreement), or such subsequent date all conditions to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementshall not have been satisfied or waived, the “Expiration Date”). Notwithstanding Purchaser may, from time to time, in its sole discretion, extend the foregoingOffer for such period as the Purchaser may determine, (xy) Merger Subsidiary shall the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law Offer, and (yz) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act, provided that, in no event shall the Offer or any “subsequent offering period” extend beyond the Outside Date without the mutual written consent of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following Company and Parent. In addition, the Expiration Date. Merger Subsidiary shall not terminate or withdraw Purchaser may increase the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject Price and extend the Offer to the foregoingextent required by Law in connection with such increase, including in each case in its sole discretion and without the requirements Company’s consent. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Purchaser shall, without the prior written consent of Rule 14d-11the Company (i) change or waive the Minimum Condition, and upon (ii) reduce the terms and subject Offer Price or decrease the number of Shares sought to be purchased in the Offer, (iii) change the expiration date of the Offer (except to the extent required or permitted pursuant to this Section 1.1(a)), impose any condition to the Offer in addition to the conditions set forth or referred to in this Section 1.1(a) or amend, modify or supplement any of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration terms of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to Offer in any manner adversely affecting the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodholders of Shares.
(b) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Purchaser shall file with the SEC United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that which shall include the summary term sheet required thereby andoffer to purchase, as exhibits, the Offer to Purchase and a form of the letter of transmittal and summary advertisement and other appropriate ancillary Offer documents form of notice of guaranteed delivery (collectively, together with any amendments or and supplements thereto, the “Offer Documents”). Subject to the Company’s compliance with Section 1.2(b), Parent and the Purchaser shall cause the Offer Documents to be disseminated to all holders of SharesShares as required by applicable U.S. federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to 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 it shall have become (or shall become known to be) false or misleading in any material respectrespect or as otherwise required by Law. Parent and Merger Subsidiary shall The Purchaser further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, Shares as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, SEC and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. In addition, Parent and Merger Subsidiary the Purchaser shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt of those comments or other communications such comments, and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary or Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), it being understood that including by participating with Parent and/or Purchaser or their counsel in any discussions or meetings with the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)SEC.
Appears in 1 contract
Sources: Merger Agreement (OAO Severstal)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in paragraph (b) of Annex I shall exist or have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icontinuing, as promptly as practicable after the date hereof (and in any event within ten (10five business days) Business Days after the date hereofof this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer to purchase any and for cash all of the outstanding Shares at the Offer Price.
(b) Promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable law to accept for payment Shares validly tendered and not withdrawn pursuant to the Offer, (ii) the earliest date as of which each of the conditions and requirements set forth in Annex I (the “Offer Conditions”) has been satisfied or waived by Parent or Purchaser, and (iii) the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares (without interest) validly tendered and not withdrawn pursuant to the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered and not withdrawn pursuant to the Offer shall be subject only (1) to the condition that there satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions (and shall not be subject to any other conditions).
(c) The Offer shall be validly tendered and not withdrawn in accordance with the terms made by means of the Offer, prior an offer to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) purchase (the “Offer to Purchase”) that contains, among other things, the terms set forth in this Agreement, the Minimum Condition”), Condition and (2) to the other conditions and requirements set forth in Annex I. Merger Subsidiary Parent and Purchaser expressly reserves reserve the right to (x) increase the Offer Price and (y) waive any of the conditions Offer Conditions and make any other changes to the Offer terms and to make any change in the terms conditions of or conditions to the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, neither Parent nor Purchaser shall (i) decrease the Minimum Condition may not be waived and Offer Price, (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the Offer Price or (iii) decrease the number of Shares sought to be purchased in the Offer, imposes (iv) impose conditions or requirements to the Offer that are different than or in addition to those set forth in Annex I the Offer Conditions, (v) change or modifies waive the conditions set forth in Annex IMinimum Condition, (vi) amend or amends modify any other term of the Offer Conditions in any a manner adverse to that adversely affects, or reasonably could adversely affect, the holders of Shares in Shares, or (vii) extend or otherwise change the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth other than as required or permitted by this Agreement.
(20thd) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 business days following the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, is referred to as the “Expiration Date”). Notwithstanding .
(e) The Offer shall be extended from time to time as follows:
(i) If on or prior to any then scheduled Expiration Date all of the foregoingOffer Conditions (including the Minimum Condition) shall not have been satisfied or waived by Parent or Purchaser (if permitted hereunder), then Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for one or more successive periods of not more than 10 business days each in order to permit the satisfaction of such conditions, each until the earlier of (x) Merger Subsidiary the termination of this Agreement pursuant to Section 8.1 and (y) the date that is 90 days after commencement of the Offer (the “Outside Date”); and
(ii) Purchaser shall extend the Offer for any period or periods required by any then applicable law, rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or its staff or NASDAQ or its staff.
(f) If necessary to obtain sufficient Shares to reach the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration DateShort-Form Threshold, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide for a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of promulgated under the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration DateExchange Act. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to Notwithstanding the foregoing, including in the requirements of Rule 14d-11, and upon the terms and subject to the conditions event that more than 80% of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all then outstanding Shares (i) have been validly tendered and not withdrawn pursuant to the Offer following the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) provide for a subsequent offering period in accordance with Rule 14d-11 promulgated under the time Exchange Act of at which Shares are first accepted for payment under least 10 business days immediately following the Expiration Date; provided, that Purchaser shall not be required to make available such a subsequent offering period in the event that, prior to the commencement of such subsequent offering period, Parent, Purchaser and their respective related organizations (as defined in Section 302A.011, Subd. 25, of the MBCA), in the aggregate, own more than 90% of the outstanding Shares. Subject to the terms and conditions of this Agreement and the Offer, the “Acceptance Time”Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and (ii) pay for, all Shares that are validly tendered and not withdrawn pursuant to the Offer during such subsequent offering period promptly after any such Shares are tendered during such subsequent offering period. The Offer Documents will provide for the possibility of a subsequent offering period in a manner consistent with the Subsequent Offering Periodterms of this Section 1.1(f).
(bg) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant to the Offer.
(h) On the date of the commencement of the OfferOffer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Purchaser shall (and Parent and Merger Subsidiary shall cause Purchaser to) file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that ). The Schedule TO shall include the summary term sheet required thereby andinclude, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), . Parent and shall Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to all holders of the Shares. The Company shall promptly upon request of Parent , in each case as and Merger Subsidiary provide Parent in writing with all information concerning to the Company that is extent required to be included in by the Schedule TO or the Offer DocumentsExchange Act. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly 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 respectrespect or as otherwise required by applicable law. Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith due consideration to any comments made all reasonable additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary Purchaser agree to use all reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents. In addition, Parent and Purchaser shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments such comments, and any written or other communications and (ii) a reasonable opportunity to participate in the response of oral responses thereto. Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration Purchaser shall be given, it being understood that give the Company and its counsel a reasonable opportunity to review any such written responses and shall provide give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If Purchaser terminates or withdraws the Offer, or this Agreement is terminated prior to the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any comments thereon depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof.
(i) Purchaser shall (and Parent shall cause Purchaser to) timely file with the Commissioner of Commerce of the State of Minnesota a registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate the registration statement as soon as reasonably practicablerequired by Chapter 80B of the Minnesota Statutes. The Company and Purchaser shall (and Parent shall cause Purchaser to) promptly file with the Commissioner of Commerce of the State of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes.
(j) 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 Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination or other like change with respect to Common Stock occurring on or after the date of this Agreement and prior to the Acceptance Time, if any.
Appears in 1 contract
Sources: Merger Agreement (Buca Inc /Mn)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable (but in no event later than five business days after the date hereof and in any event within ten (10) Business Days after public announcement of the date execution hereof), Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer (the Offer "Offer") to purchase any for cash not less than 35,144,833 shares and up to all of the issued and outstanding common stock, par value $.01 per share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company at a price of $27.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), the exact number of Shares at within such range to be determined by Parent in its sole discretion, it being hereby agreed that Parent may change the amount of Shares sought to be purchased in the Offer Pricewithin such range at any time prior to consummation of the Offer, provided that Parent complies with the requirements of Rule 14e-1 of the Exchange Act. The Offer shall be subject only (1) to the condition that there shall be being validly tendered and not withdrawn in accordance with prior to the terms expiration of the Offer, prior to the Expiration Date (as defined below), a at least 35,144,833 Shares or such other number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority as shall equal 50.1% of the total number of Shares outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(b) basis as of the expiration of the Offer (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves A hereto. Sub shall, on the right terms and subject to waive any the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as practicable after the later of the satisfaction of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer; PROVIDED, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for HOWEVER, that no such payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date shall be made until after any calculation of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, proration as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).applicable
Appears in 1 contract
Sources: Merger Agreement (Revco D S Inc)
The Offer. (aA) Provided An “Offer” for the purposes of this Schedule is an offer to sell the Reversion to the Tenant free from encumbrances (other than this Lease and the Title Matters) and which:
(i) is unconditional;
(ii) is made irrevocably by the Landlord unless and until rejected or treated as rejected by the Tenant pursuant to paragraph 7.3(C) of this Part I of this Schedule;
(iii) is made in the form set out in Part II of this Schedule;
(iv) is submitted by the Landlord to the Tenant in duplicate, both parts of which are signed by the Landlord;
(v) specifies the Consideration;
(vi) specifies whether any landlord’s fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or deemed receipt of an Offer), the Tenant shall be entitled (but not obliged) to give notice in writing to the Landlord stating either:
(i) that nothing shall have occurred and be continuing that, had it rejects the Offer been commenced, would give rise in which event the provisions of paragraph 7.3(C) will apply; or
(ii) that it wishes to a right accept the Offer.
(C) In the event (i) the Tenant declines to terminate accept the Offer pursuant to any paragraph 7 3(B)(i) or (ii) at the expiry of the conditions set forth 25 Business Days’ period specified in Annex I, paragraph 7.3(B) the Tenant has not notified the Landlord that it wishes to acquire the Reversion and the Offer is thereby treated as promptly as practicable after rejected by the date hereof and in any event Tenant or (iii) the Tenant has not within ten 5 (10five) Business Days after notifying the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary toLandlord pursuant to paragraph 7.3(B)(ii) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) that it wishes to accept the Offer then accepted the Offer pursuant to purchase any and all paragraph 7.4, the Landlord may dispose of the outstanding Shares at Reversion to a third party for a consideration determined by the Landlord and which may be less than the Consideration specified in the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares provided that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, :
(i) the Minimum Condition Landlord shall keep the Tenant fully informed of its negotiations with third parties in respect of any transfer of the Reversion, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may not be waived and redacted by the Landlord if the Landlord reasonably considers it to be necessary, save that the key terms including the consideration must be disclosed to the Tenant);
(ii) no change may the third party transaction must be made that changes bona fide and on arm’s length terms; and
(iii) if the form of consideration proposed disposal to a third party would be paid, decreases for less than the Offer Price or the number of Shares sought Consideration specified in the Offer, imposes conditions the Landlord shall first offer to sell the Reversion to the Offer in addition to those set forth in Annex I or modifies Tenant for the conditions set forth in Annex I, or amends any other term price which has been agreed with the proposed purchaser of the Reversion (the “Revised Offer”) and the Tenant shall be entitled but not obliged within 10 Business Days of receipt (or deemed receipt), time being of the essence, of the Revised Offer in any manner adverse to decline the Revised Offer or to accept the Revised Offer. In the event that the Tenant fails to respond to the holders Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Tenant. The Revised Offer shall comply in all respects with the provisions of Shares paragraph 7.3(A) subject to any necessary revisions to the form set out in Part II of this Schedule and the reasonable judgment Consideration for the purposes of the Company. The initial expiration date of the Revised Offer shall be the twentieth (20th) business day after commencement consideration for which the Landlord is intending to dispose of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, Reversion whether monetary or such subsequent date to which the expiration of the Offer is extended pursuant to not monetary and in accordance with the terms of this Agreementparagraph (C) apply to the Revised Offer as if it were an Offer, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position save in respect of the SEC or time in which the staff thereof applicable Tenant must notify the Landlord of whether it intends to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodaccept.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Lease Agreement (Indivior PLC)
The Offer. (a) Provided that nothing Subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icause Merger Sub to, as promptly as practicable after the date hereof and in any no event within later than ten (10) Business Days business days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to at a purchase any and all price of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) $65.00 per Share, net to the condition that there shall be validly tendered seller in cash but subject to any required withholding of taxes (such price, or any higher price offered and not withdrawn paid by Merger Sub in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought its sole discretion 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. Price”).
(b) The initial expiration date of the Offer shall be 12:00 midnight, New York City Time, on the twentieth date that is twenty business days following the date on which the Offer was commenced (20th) business day after commencement the “Initial Expiration Date” and together with any expiration time and date established pursuant to an extension of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is as so extended pursuant to and in accordance with the terms of this Agreementand conditions set forth herein, the “Expiration Date”).
(c) The obligation of Merger Sub to commence the Offer and to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Shares which constitutes at least a majority of the outstanding Shares (excluding from the numerator of such calculation any shares held by stockholders that are affiliated with the Company, including the members of the Fairfax Group and the directors and executive officers of each of the Company, Merger Sub and Parent, as of the Acceptance Time) (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto (together with the Minimum Condition, the “Offer Conditions”).
(d) Merger Sub expressly reserves the right to (i) increase the Offer Price and (ii) to waive any of the Offer Conditions or to modify the terms of the Offer, except that, without the prior written consent of the Company (acting pursuant to a resolution adopted by both the Special Committee and the Company Board), Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following: (A) decrease the Offer Price, change the form of consideration to be paid in the Offer or decrease the number of Shares subject to the Offer, (B) impose any conditions to the Offer other than the Offer Conditions set forth in Annex I hereto or modify any of the Offer Conditions set forth in Annex I hereto in any manner adverse to the holders of Shares, (C) otherwise amend or modify the Offer in a manner that would materially and adversely affect the holders of Shares, (D) amend, modify or waive the Minimum Condition and (E) except as otherwise provided in this Section 1.01(d), extend the Offer. Notwithstanding the foregoing, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub may, without the consent of the Company (xor the Special Committee or Company Board), (I) Merger Subsidiary extend the Offer for one or more consecutive increments of not more than ten business days each, if at any otherwise scheduled Expiration Date any of the Offer Conditions shall not have been satisfied or, if permissible, waived; (II) extend the Offer for any minimum period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer Offer; or any period required by Applicable Law and (yIII) if any condition to Shares have been accepted for payment but the Offer number of shares of Common Stock collectively owned by the Fairfax Group is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights less than 90% of the parties in Article 11then outstanding shares of Common Stock, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than fifteen business days each(for all such extensions) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance date on which Shares are first accepted for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide as a “subsequent offering period period” (“Subsequent Offering Period”as such term is defined in Rule 14d-1(g)(8) under the Exchange Act) in accordance with Rule 14d-11 of the 1934 Act of Exchange Act. In addition, if at any otherwise scheduled Expiration Date any Offer Condition has not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate been satisfied or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offerwaived, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, at the request of the Company (acting pursuant to a resolution of the Special Committee), extend the Expiration Date for one or more consecutive increments of not more than ten business days each until the earliest to occur of (including by providing x) the satisfaction or causing waiver of such Offer Conditions, (y) termination of this Agreement in accordance with its terms, and (z) the Outside Date. In addition, Merger Sub shall, and Parent shall cause Merger Sub to, at the request of the Company (acting pursuant to a resolution of the Special Committee), make available a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act of not less than ten business days; provided that Merger Sub shall not be provided required to make available such a subsequent offering period in the event that, prior to the commencement of such subsequent offering period, the Fairfax Group collectively holds at least 90% of the outstanding shares of Common Stock.
(e) Upon the expiration of the Offer, subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary on a timely basis the necessary funds)Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offerpracticable, all Shares (i) validly tendered and not properly withdrawn pursuant to the Offer (the including any subsequent offering period). The time at which Shares are first accepted that Merger Sub accepts for payment under the Offer, Shares tendered pursuant to the Offer is referred to herein as the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(bf) On the date of commencement of Parent shall provide or cause to be provided to Merger Sub on a timely basis all funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article 8 and be continuing that, had that the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex ICompany has complied with its obligations under Section 1.1(f) and Section 1.2, as promptly as practicable after the date hereof and of this Agreement but in any no event within more than ten (10) Business Days business days after the date hereofof this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver by Purchaser of the conditions set forth in Annex I (collectively, the “Offer Conditions”) as of the Expiration Date in accordance with Section 1.1(c), Purchaser shall promptly on or after the Expiration Date accept for payment (such time of acceptance for payment, the “Offer Acceptance Time”) and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer. Parent shall provide or cause to be provided to Purchaser, on a timely basis, the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer. The Company shall register (and all shall instruct its transfer agent to register) the transfer of the outstanding Shares at accepted for payment by Purchaser effective as promptly as practicable after the Offer Price. Acceptance Time.
(c) The Offer shall be subject only made by means of an offer to purchase (1the “Offer to Purchase”) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (iA) decrease the Minimum Condition may not be waived and Offer Price, (iiB) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases (C) decrease the Offer Price or the maximum number of Shares sought to be purchased in the Offer, imposes (D) impose conditions to the Offer in addition to those set forth in Annex I the Offer Conditions, (E) amend, modify or modifies the conditions set forth in Annex I, or amends supplement any other term of the Offer Conditions in any a manner adverse to the that adversely affects holders of Shares generally, (F) amend, modify or waive the Minimum Condition, or (G) extend or otherwise change the Expiration Date in the reasonable judgment of the Companya manner other than as required or permitted by this Agreement. The initial expiration date of Offer may not be terminated prior to the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined Expiration Date, unless this Agreement is terminated in accordance with Rule 14d-1(g)(3Article 8.
(d) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date 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”). Notwithstanding .
(e) Subject to the foregoingparties’ respective rights to terminate the Agreement pursuant to Article 8, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time as follows: (xi) Merger Subsidiary if on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Purchaser if permitted hereunder, then Purchaser shall extend the Offer for one (1) or more occasions in consecutive increments of ten (10) business days each (or such shorter period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Purchaser to waive any Offer Condition, other than the Minimum Condition); provided, however, that Purchaser shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Purchaser shall extend the Offer for the minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC or its staff or the staff thereof applicable to the Offer NASDAQ Stock Market (“NASDAQ”) or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waivedits staff; provided, in each casehowever, that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond and the termination Expiration Date to a date later than 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 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 at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) 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. If upon .
(g) In the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless event that this Agreement is terminated in accordance with Article 11 hereof. Subject pursuant to the foregoingterms hereof, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, Purchaser shall (and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, Purchaser to) as promptly as practicable after the expiration of irrevocably and unconditionally terminate the Offer, all shall not acquire any Shares (i) validly tendered and not withdrawn pursuant to the Offer (and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Shares to the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodregistered holders thereof.
(bh) On As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file 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 shall include the summary term sheet required thereby and, as exhibits, will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (ii) cause the Offer to Purchase and other appropriate ancillary Offer related documents (collectivelyto be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Purchaser agree that they shall cause the Schedule TO, together with all documents included therein pursuant to which the Offer will be made (collectively and with any supplements or amendments or supplements thereto, the “Offer Documents”), ) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent rules and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documentsregulations thereunder and other applicable Law. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to 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 Subsidiary shall further agrees to use all reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Purchaser or Parent’s legal counsel any information concerning the Acquired Corporations and the Company’s stockholders that is required in connection with any action contemplated by this Section 1.1(h). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, (including a summary of any oral comments) that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser shall respond promptly to those any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(i) For purposes of this Agreement, and the Offer, unless otherwise mutually agreed to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that by the Company and its counsel Purchaser, any Shares subject to notices of guaranteed delivery shall provide be deemed not to be validly tendered into the Offer unless and until the Shares underlying such notices of guaranteed delivery are delivered to Purchaser or to an agent of Purchaser.
(j) Without limiting the generality of Section 9.11, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any comments thereon Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement. Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective controlled Affiliates shall, tender any Shares held by them into the Offer.
(k) Notwithstanding anything to the contrary herein, Parent and Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent to deduct and withhold) from the consideration otherwise payable pursuant to the Offer such amounts as soon it is required by any Law to deduct and withhold with respect to Taxes and any amounts so withheld shall be promptly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and paid to the appropriate Governmental Body in accordance with all applicable Law, such withheld amounts shall be treated for all purposes of this Agreement as reasonably practicable)having been paid to the Person in respect of which such deduction and withholding was made.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated and be continuing that, had subject to the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iterms hereof, as promptly as practicable after the date hereof and practicable, but in any no event within ten later than five (105) Business Days after the date hereofpublic announcement of the execution hereof by the parties, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) ,the Offer to purchase for any and all of the outstanding Shares Shares, at the Offer Price. The Offer obligation of Parent to accept for payment and to pay for any Shares tendered shall be subject only to (1i) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(bbasis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options) be validly tendered (the “"Minimum Condition”"), and (2ii) to the other conditions set forth in Annex I. Merger Subsidiary A. Parent expressly reserves the right to waive any of the conditions to increase the Offer and Price or to make any change other changes in the terms of or and conditions to the Offer; provided, that without the prior written consent of the CompanyOffer (provided that, (i) unless previously approved by the Minimum Condition may not be waived and (ii) Company in writing, no change may be made that which (i) decreases the Offer Price, (ii) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex I or modifies A, (v) amends the conditions set forth in Annex IA to broaden the scope of such conditions, or (vi) amends any other term of the Offer in any a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b)), or (viii) amends the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and may be waived by Parent, in whole or in part at any time and from time to time, in its sole discretion other than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent 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 Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 9.2) will be tendered in the reasonable judgment Offer.
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) Business Days after the date the Offer is commenced; provided, 7 however, that without the consent of the Company. The initial 's Board of Directors, Parent may (i) from time to time extend the Offer, if at the scheduled expiration date of the Offer shall be the twentieth (20th) business day after commencement any of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date conditions to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementshall not have been satisfied or waived, the “Expiration Date”). Notwithstanding the foregoing, until such time as such conditions are satisfied or waived; (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer; or any period required by Applicable Law and (yiii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for any reason on one or more periods (each in the reasonable judgment of Merger Subsidiary occasions for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of more than twenty (20) business days eachBusiness 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 at least 90% of the outstanding Shares. Parent agrees that if all of the conditions to the Offer set forth on Annex A are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied prior to October 31, 1997, Parent shall extend the Offer from time to time until such conditions are satisfied or waived; provided, in each case, provided that Merger Subsidiary Parent shall not be required to extend the Offer beyond October 31, 1997. Subject to the termination terms and conditions of the Offer and this Agreement. If upon the acceptance , Parent shall accept for payment ofpayment, and payment pay for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior that Parent becomes obligated to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay forfor 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 (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “"Schedule TO”14D-1") with respect to the Offer. The Schedule 14D-1 shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Merger Sub agree that shall include the summary term sheet required thereby and, as exhibitsSchedule 14D-1, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any all amendments or supplements thereto, thereto (which together constitute the “"Offer Documents”") shall comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 5.1(i)). Parent and Merger Sub further agree that the Offer Documents, and on the date first published, sent or given to the Company's stockholders, shall cause 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 by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is state any material fact required to be included stated therein or necessary in order to make the Schedule TO or statements therein, in light of the Offer Documentscircumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary shall Sub further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, 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 on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall agrees to provide the Company and its counsel in writing with (i) any comments Parent or other communications, whether written or oral, that Parent, Merger Subsidiary or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex II hereto, Parent shall or shall cause Sub to, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after following the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the Offer "Offer") to purchase any and all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares at tendered in the Offer Price. The Offer shall be subject only to (1i) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below), expiration date of the Offer and not withdrawn a number of Shares thatwhich, together with the any Shares then owned by Parent and/or Merger Subsidiaryor Sub, represents at least a majority ninety (90%) percent of the total number of Shares outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(b) basis (the “"Minimum Condition”"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (2iii) to the other conditions set forth in Annex I. Merger Subsidiary I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the conditions Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without unless previously approved by the prior written consent of the CompanyCompany in writing, Offeror will not (i) decrease the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought price per Share payable in the Offer, imposes (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I or modifies hereto, (iv) change the conditions set forth to the Offer in Annex Iany material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or amends (vii) amend any other term of the Offer in any a manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable Law Offer. The limitations regarding the terms and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights conditions of the parties in Article 11Offer, extend the Offer for one or more periods (each as set forth in the reasonable judgment of Merger Subsidiary for second preceding and the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; providedimmediately preceding sentences, in each case, that Merger Subsidiary shall not be required applicable in the event this Agreement is terminated pursuant to extend the Offer beyond the termination Section 8.1(d) of this Agreement. If upon Subject to the acceptance terms and conditions of the Offer and this Agreement, Offeror shall accept for payment of, and payment pay for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior that Offeror becomes obligated to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer, all Shares (isubject to compliance with Rule 14e-1(c) validly tendered and not withdrawn pursuant under the Exchange Act. Subject to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) terms and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement conditions of the Offer, Parent and Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO with respect Sub will each use its reasonable best efforts to the Offer (together with all amendments and supplements thereto and including exhibits theretotake, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated taken, all actions and to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required do, or cause to be included in done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Offer.
Appears in 1 contract
Sources: Merger Agreement (Bertuccis Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated and none of the events set forth in Section (a) through (i) of Annex A attached hereto and made a part hereof (“Annex A”) shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and shall not have been waived by the Merger Sub), the Merger Sub shall, and the Parent shall cause the Merger Subsidiary Sub to) , commence (within the meaning of Rule 14d-2 under of the ▇▇▇▇ ▇▇▇Exchange Act (as defined in Section 2.9(a)(ii))) the Offer to purchase any and all as promptly as reasonably practicable after the date hereof. The obligation of the outstanding Merger Sub to accept for payment and pay for the Shares at tendered pursuant to the Offer Price. The Offer shall be subject only (1) to the satisfaction of the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a expiration of the Offer that number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, which represents at least a majority of the total number of then outstanding Shares outstanding on a fully fully-diluted basisbasis (taking into account all Shares issued and outstanding as of the expiration of the Offer and all additional Shares that would be issued and outstanding if all vested options, calculated in accordance with Section 3.5(bwarrants or rights to purchase Shares at a price per Share less than the Offer Consideration were exercised) (the “Minimum Condition”), ) and (2) to the satisfaction or waiver by the Merger Sub of the other conditions set forth in Annex I. A (the Minimum Condition and the conditions set forth in Annex A collectively, the “Offer Conditions”). The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 3.1(a)) will be tendered to the Merger Subsidiary Sub pursuant to the Offer. The Merger Sub expressly reserves the right to waive in whole or in part any of the conditions Offer Conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, however, that no change may be made without the prior written consent of the CompanyCompany which decreases the price per Share payable in the Offer, (i) reduces the Minimum Condition may not maximum number of Shares to be waived and (ii) no change may be made that purchased in the Offer, changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid 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 IA, waives or amends changes the Minimum Condition or makes any other term change in the terms and conditions of the Offer that is in any manner adverse to the holders of Shares in or, except as provided below, extends the reasonable judgment Offer. Subject to the terms of the CompanyOffer and this Agreement and the satisfaction of the Minimum Condition and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A as of any expiration date of the Offer, the Merger Sub shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable Legal Requirements (as defined in Section 3.2(d)). The initial scheduled expiration date of the Offer shall initially be 20 Business Days (as defined in Section 9.3(e)) following the twentieth (20th) business day after date of commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under counting for such purposes the Exchange Act) (day the Offer is commenced as the first day of such dateperiod), or and the Offer shall be extended until such subsequent time as the Offer Conditions are satisfied or, to the extent permitted by this Agreement, waived; provided, however, that the scheduled expiration date to which the expiration of the Offer shall not be extended beyond 75 calendar days following the date of commencement of the Offer (counting for such purposes the day the Offer is extended pursuant to commenced as the first day of such period) without the mutual written consent of the Company and in accordance with the terms of this AgreementMerger Sub (such date as may be so extended, the “Expiration Outside Offer Date”). Notwithstanding the foregoing, the Merger Sub may, without the consent of the Company, (xi) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or United States Securities and Exchange Commission (the “SEC”), the staff thereof or the Nasdaq National Market (“NASDAQ”) applicable to the Offer (but in no event beyond the Outside Offer Date) or any period required by Applicable Law and (yii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer provide for one or more periods (each “subsequent offering periods” of up to an additional 20 Business Days in the reasonable judgment of aggregate in accordance with and to the extent permitted by Rule 14d-11 under the Exchange Act. Parent and Merger Subsidiary for Sub shall not terminate the minimum period of time reasonably expected by Merger Subsidiary Offer prior to any scheduled expiration date (as the same may be extended or required to be required extended) without the written consent of the Company except in the event that Parent and Merger Sub terminate this Agreement pursuant to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, Section 8.1. At the time that the Merger Subsidiary shall not be required Sub becomes obligated to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept for payment of, and payment for, all pay for Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, Parent shall provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior cause to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject be provided to the foregoingMerger Sub the funds necessary to pay for all Shares that the Merger Sub becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer Consideration shall, including subject to any required withholding of Taxes (as defined in Section 9.3(h)), be net to the requirements of Rule 14d-11seller in cash, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of the commencement of the Offer, Parent and the Merger Subsidiary Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that with respect to the Offer. The Schedule TO shall include contain or incorporate by reference an offer to purchase and forms of the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectively, together with any all amendments or and supplements thereto, the “Offer Documents”), . The Parent and the Merger Sub shall cause the Offer Documents to be disseminated to all the holders of Sharesthe Shares as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and the Merger Subsidiary provide Parent in writing with all information concerning Sub, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, will 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent , and the Merger Subsidiary shall Sub will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawslaws and the DGCL. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC. In addition, and the Parent and the Merger Subsidiary shall give reasonable and good faith consideration Sub agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communicationscomments, whether written or oral, that Parent, the Parent or the Merger Subsidiary Sub or either of their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that consult with the Company and its counsel prior to responding to any such comments (and provide the Company and its counsel with copies of any such written response and telephonic notification of any such verbal response). If the Offer is terminated or withdrawn by the Merger Sub, the Parent and the Merger Sub shall provide any comments thereon promptly use their respective best efforts to cause the Paying Agent to cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as soon as reasonably practicabledefined in Section 2.7(a)).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article VIII hereof and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IExhibit A hereto (the "Tender Offer Conditions") shall have occurred, (i) as promptly as practicable after but in no event later than the fifth business day from the date hereof and in any event within ten (10) Business Days after the date hereofof this Agreement, Merger Subsidiary Parent shall (and Parent shall A) cause Merger Subsidiary to) the Purchaser to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) the Offer and, (B) after affording the Company a reasonable opportunity to purchase any review and comment thereon, file all necessary documents with the Securities and Exchange Commission (the "SEC") in connection with the Offer (the "Offer Documents") and (ii) Parent shall use reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligation of the outstanding Purchaser to accept for payment and pay for any Shares at the Offer Price. The Offer shall tendered pursuant thereto will be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms satisfaction or waiver of the Offer, prior to the Expiration Date Tender Offer Conditions.
(as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(bb) (the “Minimum Condition”), and (2) to 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 without Without the prior written consent of the Company, the Purchaser shall not (i) decrease the Minimum Condition may not be waived and (ii) no Offer Price or change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the Offer Price or (ii) decrease the number of Shares sought to be purchased in the Offer, imposes (iii) subject to Parent's and Purchaser's right to waive same (subject to clause (iv) below), amend the Tender Offer Conditions or impose additional conditions to the Offer Offer, (iv) waive the Minimum Condition (as defined in addition to those set forth in Annex I Exhibit A hereto) or modifies the conditions set forth in Annex I, or amends (v) amend any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the CompanyCommon Shares. The initial expiration date of the Offer shall be remain open until the twentieth (20th) business day after commencement later of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer date that is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) 20 business days each) until (as such conditions are satisfied or waived; provided, term is defined in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds14d-l(c), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred and be continuing thatbeen terminated in accordance with Section 8.01, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer to purchase any and all as promptly as practicable after the date hereof, but in no event later than seven business days after the public announcement of the outstanding Shares at the Offer Priceexecution of this Agreement. The obligation of Purchaser to accept for payment, and to pay for, Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "Minimum Condition") that there at least the number of Shares that when added to the Shares already owned by Parent, Purchaser or any subsidiary of Parent, if any, shall constitute two-thirds of the then outstanding Shares on a fully diluted basis (on a "fully diluted basis" meaning the number of Shares outstanding, together with the Shares which the Company may be required to issue pursuant to options or obligations outstanding at that date and which do not terminate upon consummation of the Offer under any employee stock or similar benefit plans or otherwise, whether or not vested or then exercisable) shall have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number Offer and to the satisfaction or waiver by Purchaser of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that without the prior written consent of the Companyhowever, Purchaser may not (i) waive the Minimum Condition may not (except under circumstances whereby the "Option" (as defined in the Shareholders Agreement) is or, upon the expiration of the Offer, will be, exercisable in accordance with its terms, provided that such Option is exercised by Parent or Purchaser as soon as practicable after it becomes so exercisable and, upon any such exercise, the Minimum Condition will be waived and satisfied), (ii) no change may be made that changes decrease the form of consideration to be paid, decreases the Offer Price or the number of Shares sought price per Share payable in the Offer, imposes (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) impose conditions to the Offer in addition to those set forth in Annex I or modifies A hereto, (v) except as provided below, extend the conditions set forth Offer, (vi) change the form of consideration payable in Annex Ithe Offer, or amends (vii) make any other term change in the terms or conditions of the Offer in any manner that is otherwise adverse to the Company or the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer for up to 30 business days beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration date of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or, to the extent permitted by this Agreement, waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC"), or the staff thereof thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than five business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment, and to pay for, the Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer equals 75% or more, but less than 90%, of the outstanding Shares on a fully diluted basis, so long as the Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer set forth on Annex A hereto (other than the Minimum Condition and the condition set forth in paragraph (a) of Annex A hereto) that subsequently may not be satisfied during any such extension of the Offer. If, on the initial scheduled expiration date of the Offer, (x) the sole condition remaining unsatisfied is the failure of the waiting period required by Applicable Law under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), to have expired or been terminated, then Purchaser shall extend the Offer from time to time until five business days after the expiration or termination of the applicable waiting period under the HSR Act and (y) if any the condition to set forth in paragraph (c) or (d) of Annex A shall not have been satisfied, the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary Purchaser shall, subject so long as the breach can be cured and the Company is vigorously attempting to the rights of the parties in Article 11cure such breach, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of from time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) time until five business days each) until after such conditions are satisfied or waived; provided, in each case, breach is cured (provided that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond the termination of this Agreement30 business days after such initial scheduled expiration date). If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant The Per Share Amount shall be net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer and Section 2.08(e). Subject to the terms and conditions of the Offer, Merger Subsidiary Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Purchaser to, accept for payment and pay forpay, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn withdrawn. The Company shall not tender Shares held by it or by any of its Subsidiaries pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodexcept pursuant to Section 2.07(b).
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file 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 with respect to the Offer. The Schedule TO shall include contain or shall incorporate by reference an offer to purchase (the summary term sheet required thereby and, as exhibits"Offer to Purchase") and forms of the related letter of transmittal and all other ancillary offer documents (the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), . Parent and Purchaser shall cause the Offer Documents to be disseminated to all the holders of SharesShares as soon as practicable following the commencement of the Offer. The Company Offer Documents shall promptly upon request comply in all material respects with the provisions of applicable federal securities laws. Parent and Merger Subsidiary provide Parent in writing with all information concerning Purchaser, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, shall correct 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 Subsidiary Purchaser shall cause the Schedule TO 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 holders 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, (and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)) prior to the filing thereof with the SEC. In addition, Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable with copies of any written responses and good faith consideration shall be giventelephonic notification of any verbal responses by Parent, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Purchaser or their counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icontinuing, as promptly as practicable after the date hereof and practicable, and, in any event event, within ten (10) Business Days after seven business days of the date hereof, Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase any and for cash all of the outstanding Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (1i) to the condition that there shall be being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction of the Minimum Condition and subject to the prior satisfaction or waiver by Parent or the Purchaser of the other conditions of the Offer set forth in Annex I hereto (it being understood that the Minimum Condition cannot be waived or modified without the consent of the Company), the Purchaser shall, in accordance with the terms of the Offer, prior to consummate the Expiration Date (as defined below), a number of Offer and accept for payment and pay for all Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), validly tendered and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions not withdrawn pursuant to the Offer and to make any change in the terms promptly after expiration of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to which shall initially be the Offer in addition to those set forth in Annex I or modifies 20th business day following the conditions set forth in Annex I, or amends any other term commencement of the Offer in any manner adverse to Offer, provided, however, that (w) if on the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement or on any subsequent scheduled expiration date of the Offer (determined as extended in accordance with Rule 14d-1(g)(3) under this Agreement), all conditions to the Exchange Act) (Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such dateperiod as the Purchaser may determine until such conditions are waived or satisfied; provided, or such subsequent however, that, if, as of any scheduled expiration date to which the expiration of the Offer is extended pursuant Offer, (A) any of the events set forth in clauses (a),
(b) or (c) of Annex I shall have occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser) then, subject to the right of Parent and the Purchaser to terminate this agreement in accordance with the terms of this Agreementits terms, the “Expiration Date”Purchaser shall be required to extend the Offer unless such conditions could not reasonably be expected to be waived or satisfied by the Outside Date or (B) any of the events set forth in clause (f) of Annex I (but only with respect to unintentional failures of such representations and warranties to be true and correct) or clause (g) of Annex I (but only with respect to non-willful breaches of, or failures to comply with, covenants and agreements) shall have occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser). Notwithstanding , then, subject to the foregoingright of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the offer to a date that is not less than 30 days after Purchaser notified the Company of such event, (x) Merger Subsidiary shall the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or any period required by Applicable Law and Offer, (y) if any condition to on the then scheduled expiration date of the Offer is there shall have been validly tendered and not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights withdrawn at least 80% but less than 90% of the parties Shares outstanding on a fully diluted basis, the Purchaser may, in Article 11its sole discretion, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an additional period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 10 business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment ofdays, and payment for, all Shares validly tendered and not withdrawn pursuant to (z) the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of under the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following Exchange Act. In addition, the Expiration Date. Merger Subsidiary shall not terminate or withdraw Purchaser may increase the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, Price and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to extend the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as and to the extent required by applicable U.S. federal securities laws. The Company law in connection with such increase, in each case in its sole discretion and its counsel without the Company’s consent; provided, however, that neither Parent nor Purchaser shall be given a reasonable opportunity to review and comment on the Schedule TO and otherwise modify the Offer Documents each time before in any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect manner adverse to the Schedule TO or Offer Documents promptly after receipt holders of those comments or other communications and (ii) a reasonable opportunity to participate Shares without the Company’s consent, except as specifically permitted 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)this Agreement.
Appears in 1 contract
The Offer. As regards the Offer:
(a) Provided the Company shall:
(i) provide the Agent with a copy of the Offer Press Release as soon as reasonably practicable after its release;
(ii) post the Offer Document to holders of the Target Shares within 28 days after the date on which the Offer Press Release is issued (or such other longer period as the Panel may permit);
(iii) ensure that nothing shall have occurred the Offer Press Release and Offer Document contain all the material terms and conditions of the Offer; and
(iv) ensure that the Offer Document corresponds in all material respects to the terms and conditions of the Offer as contained in the Offer Press Release (save for such changes as may be continuing required by the Panel or which may be necessary to ensure compliance with the Code);
(v) use all reasonable endeavours to ensure that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly soon as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning Unconditional Date where acceptances of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all have been received from holders of at least 90% of the outstanding Target Shares at to which the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date relates (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated that expression is construed in accordance with Section 3.5(b979 of the Companies Act 2006) and, in the case where the Target Shares to which the Offer relates are voting shares (as that expression is construed in accordance with Section 979 of the “Minimum Condition”Companies Act 2006), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any acceptances have been received from holders of at least 90% of the conditions voting rights carried by such Target Shares, the Compulsory Acquisition Procedure is implemented in respect of the holders of those Target Shares who have yet to the Offer and to make any change in the terms of or conditions to accept the Offer; provided, that ;
(b) the Company shall not without the prior written consent of all of the Company, Lenders:
(i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paidamend or vary, decreases the Offer Price in whole or the number of Shares sought in the Offerpart, imposes conditions to the Offer in addition to those set forth in Annex I any material term or modifies the conditions set forth in Annex I, or amends any other term condition of the Offer in any manner adverse respect
(ii) waive, withdraw, decide not to the holders of Shares or fail to enforce, in the reasonable judgment whole or in part, any material term or condition of the Company. The initial expiration date Offer; or
(iii) declare, accept or treat as satisfied any condition of the Offer shall be where it is not actually satisfied or has not been complied with, in each case other than (1) as required by the twentieth Code or the Panel or any applicable law, regulation or regulatory body or (20th2) business day after commencement in respect of the Offer waiver of any Condition which the Company determines (determined in accordance with acting on the advice of its legal advisers) that it is not entitled to invoke pursuant to Rule 14d-1(g)(313.5(a) of the Code. Notwithstanding the above it is agreed that Lenders consent is not required to any of the following: (A) if the consideration payable under the Exchange ActOffer is increased and such increase is funded from a Permitted Transaction under paragraph (b) of that definition; or (such date, B) if the consideration is reduced; or such subsequent date to which (C) if the expiration threshold for acceptance of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation waived or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodreduced.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Backstop Facility Agreement
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof (and in any event within ten (10) no later than five Business Days after the date hereof), Merger Subsidiary shall (shall, and Parent shall cause Merger Subsidiary to) , commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date scheduled expiration of the Offer (as defined below)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 and/or Merger SubsidiaryParent, represents at least a majority of the total number of all Company Shares then outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), ) and (2) to 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, provided that without unless otherwise provided by this Agreement or previously approved by the prior written consent of the CompanyCompany in writing, (i) the Minimum Condition may not be waived and waived, (ii) no change may be made that changes the form of consideration to be paidpaid 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 modifies the conditions set forth in Annex I, or otherwise amends any other term of or modifies the Offer in any manner materially adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of Company Shares, and (iii) the Offer shall may not be the twentieth (20thextended except as set forth in this Section 2.01(a) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date . Subject 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”)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 ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer (1) if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) 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 SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights Law. Following expiration of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a one or more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act Act, if, as of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary commencement of each such period, there shall not terminate or withdraw have been validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that number of Company Shares necessary to its Expiration Datepermit the Merger to be effected without a meeting of stockholders of the Company, unless this Agreement is terminated in accordance with Article 11 hereofSection 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)to, accept for payment and pay for, as promptly as practicable after the expiration of the Offerpracticable, all Company Shares (iA) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (iiB) validly tendered in the 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 Merger Subsidiary shall (i) file 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 shall include the summary term sheet required thereby and, as exhibitsexhibits or incorporated by reference thereto, the Offer to Purchase and a form forms of letter of transmittal and summary advertisement and other appropriate ancillary advertisement, if any, in respect of the Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall (ii) cause the Offer Documents to be disseminated to all holders of Company Shares. The Company shall promptly upon request of furnish to Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is may be required to be included by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or and 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. Parent and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary shall promptly provide the Company and its counsel with (iA) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications communications, and (iiB) 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), it being understood that including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)SEC.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp)
The Offer. (a) Provided that nothing shall have occurred and be continuing thatIf (i) this Agreement has not been terminated in accordance with Section 8.1, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any (ii) none of the conditions set forth in Annex I, Paragraphs (a) through (g) of Appendix A to this Agreement other than Paragraph (f) (with respect to the representations and warranties as promptly as practicable of the Expiration Date) and Paragraph (g) (with respect to obligations to be performed or agreements or covenants to be performed or complied with after the date hereof commencement of the Offer) shall have occurred (unless waived by Parent in its sole discretion) and in any event (iii) the Purchaser has received the Financing Letters then, within ten (10) five Business Days after following Purchaser's receipt of the date hereofFinancing Letters (the "Offer Deadline"), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer shall be subject only (1) Subject to the condition that there shall be validly tendered Minimum Condition and not withdrawn in accordance with the terms subject to satisfaction or waiver of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves Appendix A to this Agreement, Purchaser shall consummate the right Offer in accordance with its terms and to waive any of the conditions accept for payment and pay for Shares tendered pursuant to the Offer promptly after Purchaser is legally permitted to do so under Applicable Law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to make any the Minimum Condition and the other conditions set forth in Appendix A to this Agreement and shall reflect, as appropriate, the other terms set forth in this Agreement. Unless previously approved by the Company in writing, no change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, Offer may be made (i) which decreases the Minimum Condition may not be waived and price per Share payable in the Offer, (ii) no change may be made that which changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex I Appendix A hereto or which modifies the conditions set forth in Annex IAppendix A in a manner adverse to the holders of Shares, or (v) which amends any other term of the Offer in any a manner inconsistent with this Agreement and adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such dateShares, or such subsequent date to (vi) which extends the expiration of the Offer is extended pursuant beyond thirty (30) Business Days following the initial scheduled Expiration Date (the initial scheduled Expiration Date being 20 Business Days following the commencement of the Offer); provided, however, that notwithstanding the foregoing, subject to and Section 8.1, if the conditions set forth in accordance with Appendix A are not satisfied or, to the terms of extent permitted by this Agreement, the “Expiration Date”). Notwithstanding the foregoingwaived, (x) Merger Subsidiary shall Purchaser will extend the Offer for any period required by any rule, regulation, interpretation or position from time to time until the earlier of (i) the consummation of the SEC or Offer and (ii) thirty (30) Business Days in the staff thereof applicable aggregate following the initial Expiration Date of the Offer. In addition, Purchaser may increase the Offer Price, and the Offer may be extended to the Offer or any period extent required by Applicable Law and (y) if any condition in connection with such increase, in each case without the consent of the Company. If all of the conditions to the Offer is not are satisfied or waived on any scheduled but the number of Shares validly tendered but not withdrawn, together with the Shares held by Parent and Purchaser, if any, is less than ninety percent (90%) of the then outstanding number of Shares, then upon the applicable Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 Purchaser shall, and Parent shall cause it Purchaser to, provide for "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 (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)20) Business Days (for all such extensions) and Purchaser shall, accept for payment and pay forParent shall cause Purchaser to, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to give the Offer (the time at which Shares are first accepted for payment under the Offerrequired notice of such extension, the “Acceptance Time”) and (ii) validly immediately accept and promptly pay for all Shares tendered in prior to the Subsequent Offering Perioddate of such extension.
(b) On the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Offer. The Schedule TO”) that shall include the summary term sheet required thereby andTO will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement advertisement.
(c) Parent and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to all holders of the Shares, in each case as and to the extent required by applicable securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning Purchaser, on the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, will 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall Purchaser will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 on the Schedule TO and each of the Offer Documents each time before any such document Offer Document is filed with the SECSEC or disseminated to holders of the Shares, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by as the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)case may be. Parent and Merger Subsidiary shall Purchaser will provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Documents, promptly after the receipt of those such 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)communications.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not ------------ --------- have occurred been terminated in accordance with Article IX, unless otherwise agreed by Parent and be continuing thatthe Company, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) no later than three Business Days after following effectiveness of a Registration Statement on Form S-4 (together with any amendments or supplements thereto, the date hereof, Merger Subsidiary shall (and "Offer Registration Statement") Parent ---------------------------- shall cause Merger Subsidiary toSub to commence an offer (the "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the ----- outstanding Shares shares of Company Common Stock at a price for each share of Company Common Stock of (1) $29.60, net to the Offer Priceseller in cash, and (2) a fraction of a share of Parent Common Stock equal to the Exchange Ratio. The Offer shall be subject only to (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares shares of Company Common Stock that, together with the Shares shares of Company Common Stock then owned by Parent and/or Merger SubsidiarySub, represents at least a majority two-thirds of the total number shares of Shares Company Common Stock outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(b) basis (the “"Minimum Condition”), ") and (2) to the other ----------------- conditions set forth in Annex I. I hereto. Merger Subsidiary expressly reserves Sub shall have 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, provided that (A) the Minimum Condition may not be -------- waived or reduced to less than two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis without the prior written consent of the Company, (i) the Minimum Condition may not be waived Company and (iiB) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the Offer Price or consideration payable in the Offer, reduces the maximum number of Shares sought shares of Company Common Stock to be purchased 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, or amends makes any other term of the Offer in any manner change which is adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Company Common Stock. Notwithstanding the foregoing, (x) without the consent of the Company, Merger Subsidiary Sub shall have the right to extend the Offer (i) for one or more periods (not in excess of 10 Business Days each) but in no event ending later than the Termination Date if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and applicable law or (yiii) if any condition for an aggregate period of not more than 10 Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are have been satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferOffer equals 80% or more, Merger Subsidiary has not acquired the Requisite Short Form Merger Sharesbut less than 90%, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act outstanding shares of not less than three (3) nor more than ten (10) business days immediately following Company Common Stock on a fully diluted basis. In the Expiration Date. event that Merger Subsidiary shall not terminate or withdraw Sub is unable to consummate the Offer prior on the initial scheduled expiration date due to its Expiration Datethe failure of the conditions to the Offer to be satisfied or waived, Parent shall cause Merger Sub to, unless this Agreement is terminated in accordance with pursuant to Article 11 hereofIX, extend the Offer and set a subsequent scheduled expiration date, and shall continue to so extend the Offer and set subsequent scheduled expiration dates until the Termination Date. Subject to the foregoing, including the requirements of Rule 14d-11, foregoing and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer (Offer. Parent will announce the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered exact Exchange Ratio with respect to each share of Company Common Stock that is to be exchanged in the Subsequent Offering PeriodOffer by 9:00 a.m., New York City time, on the second Trading Day immediately preceding the Acceptance Date. Parent will make such announcement by issuing a press release to the Dow ▇▇▇▇▇ News Service.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent shall, and Parent shall cause Merger Subsidiary shall Sub to file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”"Schedule TO"). As soon as reasonably practicable ----------- after the date hereof, Parent shall, and shall cause Merger Sub to, file the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Registration Statement (the Schedule TO or TO, the Offer Registration Statement and such documents included therein pursuant to which the Offer will be made, the "Offer Documents"). Each of Parent, Merger Subsidiary Parent and the Company agrees agree 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. Parent shall, and Parent shall cause Merger Subsidiary shall Sub to take all steps necessary to cause the Schedule TO and the Offer Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be be, at such time as reasonably agreed by Parent and the Company, disseminated to holders of Sharesshares of Company Common Stock, 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 an opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SECSEC or disseminated to the holders of shares of Company Common Stock. Parent shall, and Parent and shall cause Merger Subsidiary shall give reasonable and good faith consideration Sub to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Parent and Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) a reasonable shall provide the Company and its counsel an opportunity to participate in the response of Parent and or Merger Subsidiary Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as reasonably practicable after the date hereof (and in any event within ten fifteen (1015) Business Days after the date hereofof this Agreement, Merger Subsidiary as such period may be extended by Parent and the Purchaser if and to the extent the Company fails to satisfy its obligations pursuant to the Section 1.1(g)(iv)), the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Exchange Act, the Offer to purchase any and all of the outstanding Shares for cash at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms consummation of the Offer, and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date (as defined below), a that number of Shares thatwhich, together with the number of Shares (if any) then owned by Parent and/or Merger Subsidiaryor any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, represents at least a majority of the total number of Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company Table of Contents then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, calculated but not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the extent such procedures are permitted by the Purchaser) that have not yet been delivered in accordance with Section 3.5(bsettlement or satisfaction of such guarantee) (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser (to the extent permitted in Annex I), and (2) to of each of the other conditions and requirements set forth in Annex I. Merger Subsidiary expressly reserves the right Subject to waive any of Annex I, the conditions and requirements to the Offer set forth in this Section 1.1 and Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to make such condition or may be waived by the Purchaser, in its sole discretion, in whole or in part at any change in the terms of or conditions time and from time to time.
(b) Subject to the Offer; provided, that without the prior written consent satisfaction of the Company, (i) the Minimum Condition may not be waived and the satisfaction, or waiver by the Purchaser (ii) no change may be made that changes the form of consideration to be paid, 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 extent permitted by Annex I or modifies I), of each of the other conditions and requirements set forth in Annex I, or amends any other term of the Offer in any manner adverse to Purchaser shall, and Parent shall cause the holders of Shares in Purchaser to, upon the reasonable judgment of the Company. The initial expiration date of the Offer shall first Expiration Date (as it may be the twentieth (20th) business day after commencement of the Offer (determined extended in accordance with Rule 14d-1(g)(3Section 1.1(e)) under the Exchange Act) (such date, or such subsequent date to upon which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required cause the Acceptance Time to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment ofoccur, and payment forthe Purchaser shall, and the Parent shall cause the Purchaser to, pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer, Merger Subsidiary has Offer as promptly as practicable (and in any event not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less more than three (3) nor more than ten (10Business Days) business days immediately following the Expiration DateAcceptance Time. Merger Subsidiary shall not terminate or withdraw the The Offer prior to its Expiration Date, unless this Agreement is terminated Price payable in accordance with Article 11 hereof. Subject to the foregoing, including the requirements respect of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the time at “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, which approval may be withheld in Company’s sole discretion, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer (other than adding consideration), (iii) reduce the maximum number of Shares are first accepted for payment under to be purchased in the Offer, (iv) amend or waive the “Acceptance Time”) and (ii) validly tendered Minimum Condition or the condition set forth in the Subsequent Offering Period.
clause (b) On of Annex I, (v) impose any condition or requirement on the date Offer other than those set forth in Annex I, (vi) except as provided in Section 1.1(e), extend the Offer or (vii) otherwise amend the Offer in any manner that is adverse to the holder of commencement Shares. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of the Offerany stock split, Parent and Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO 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 Offer (together with all amendments Shares, occurring on or after the date of this Agreement and supplements thereto prior to the Acceptance Time, and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, such adjustment to the Offer Price shall provide to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company Shares the same economic effect as contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning be construed to permit the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct take 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. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff action with respect to its securities that is not permitted by the Schedule TO or Offer Documents promptly after receipt terms of those 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Integrated Device Technology Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date scheduled expiration of the Offer (as defined below)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 and/or or Merger Subsidiary, represents at least a majority of the total number of all Company Shares then outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), ) and (2) to 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, provided that without unless otherwise provided by this Agreement or previously approved by the prior written consent of the CompanyCompany in writing, (i) the Minimum Condition may not be waived and waived, (ii) no change may be made that changes the form of consideration to be paidpaid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies I, and (iii) the conditions Offer may not be extended except as set forth in Annex I, or amends any other term of the Offer in any manner adverse this Section 2.01(a). Subject to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to terms and in accordance with the terms conditions of this Agreement, the “Expiration Date”)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 ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer (i) if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) 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 (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 and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights Law. Following expiration of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a one or more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofAct. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the final expiration of the Offer, all Company Shares (iA) validly tendered and not withdrawn pursuant to the Offer and/or (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (iiB) validly tendered in the 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 Merger Subsidiary shall (i) file 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 shall include the summary term sheet required thereby and, as exhibitsexhibits or incorporated by reference thereto, the Offer to Purchase and a form forms of letter of transmittal and summary advertisement and other appropriate ancillary advertisement, if any, in respect of the Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall (ii) cause the Offer Documents to be disseminated to all holders of Company Shares. The Company shall promptly upon request of furnish to Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is may be required to be included by applicable securities laws or reasonably requested by Parent and Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or and 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. Parent and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (iA) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications communications, and (iiB) 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), it being understood that including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
(c) Parent and Merger Subsidiary shall timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Company Shares via the Offer Documents the information set forth in any such registration statement to the extent and its counsel shall provide any comments thereon as soon as reasonably practicable)within the time period required by Chapter 80B of the Minnesota Statutes.
Appears in 1 contract
Sources: Merger Agreement (Stellent Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex II hereto, as promptly as practicable after the date hereof and in any event within ten (10) Business Days five business days after the date hereof, Merger Subsidiary shall commence an offer (and Parent shall cause Merger Subsidiary tothe "OFFER") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares shares of common stock, par value $0.01 per share, of the Company (the "COMPANY STOCK") at a price of $5.75 per share, net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares shares of Company Stock that, together with the Shares shares of Company Stock then owned by Parent and/or Merger Subsidiaryand its Affiliates, represents at least a majority of the total number shares of Shares Company Stock outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(b) basis (the “Minimum Condition”), "MINIMUM CONDITION") and (2) to the other conditions set forth in Annex I. 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; providedprovided that, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price price per share of Company Stock or the number of Shares shares of Company Stock sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies I. If any of the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Dateexpiration date of the Offer, Merger Subsidiary shall, subject to the rights of the parties in Article 11, shall extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of from time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) time until such conditions are satisfied or waived; provided, in each case, provided that Merger Subsidiary shall not be required to extend the Offer beyond August 1, 2001. Any individual extension of the termination of this AgreementOffer pursuant to the preceding sentence shall not exceed 10 business days. If upon at the acceptance for payment ofexpiration of the Offer all of the conditions to the Offer have been satisfied or 6 waived, Merger Subsidiary may (and payment for, all Shares if the number of shares of Company Stock validly tendered and not withdrawn pursuant to the OfferOffer equals 80% or more, Merger Subsidiary has not acquired but less than 90% of the Requisite Short Form Merger Sharesoutstanding shares of Company Stock, Merger Subsidiary may, in its sole discretion, provide shall) extend the Offer pursuant to an amendment to the Offer providing for a "subsequent offering period (“Subsequent Offering Period”) period" not to exceed 20 business days to the extent permitted under, and in accordance with compliance with, Rule 14d-11 of under the 1934 Securities Exchange Act of not less than three 1934, as amended (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof"EXCHANGE ACT"). Subject to the foregoing, including the requirements of Rule 14d-11, foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)to, accept for payment payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the expiration of date on which Merger Subsidiary first accepts shares for payment pursuant to the OfferOffer (the "ACCEPTANCE DATE"), all Shares (i) shares of Company Stock validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") with respect to the Offer (together with all amendments such Schedule TO and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, such documents included therein pursuant to which the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”"OFFER DOCUMENTS"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company each 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. Parent and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Stock, 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 an opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect disseminated to the Schedule TO or Offer Documents promptly after receipt holders of those comments or other communications and (ii) a reasonable opportunity to participate in the response shares 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Stock.
Appears in 1 contract
The Offer. (a) Provided Provided, that nothing this Agreement shall not have terminated in accordance with its terms and provided that none of the events set forth in clause (iii)(a) of Annex A shall have occurred and be continuing thatsubject to there being no order, had decree, judgment, injunction or ruling of a Governmental Authority of competent jurisdiction enjoining, restraining or otherwise prohibiting the commencement of the Offer and no Law having been commencedenacted, would give rise entered, enforced, promulgated, amended, issued or deemed applicable to a right to terminate Parent, the Offer pursuant to Company or any of the conditions set forth in Annex Isubsidiary or affiliate thereof having such effect, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer as promptly as reasonably practicable, but no later than seven (7) business days (commencing with the first business day after the date of this Agreement), after the date hereof. Following such launch, each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of Purchaser to accept for payment, purchase and pay for any and all of the outstanding Company Shares at tendered pursuant to the Offer Price. The Offer (and not validly withdrawn) shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with satisfaction or waiver pursuant to the terms hereof of (x) the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) condition (the “Minimum Condition”)) that at least that number of Company Shares validly tendered and not withdrawn prior to the expiration date of the Offer, when added to any Company Shares already owned by Parent or any of its controlled Subsidiaries, if any, equal to fifty point one percent (50.1%) of the sum of the then outstanding Company Shares plus (without duplication) a number equal to the number of Company Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights with an exercise price below the Per Share Amount, including the Company RSUs and Company Stock Options, in each case, which are convertible or exercisable on or prior to the later of (i) September 30, 2010 and (2ii) the Outside Date, as the same may be extended pursuant to the terms hereof and (y) the other conditions set forth in Annex I. Merger Subsidiary A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any of such condition (other than the conditions Minimum Condition which may not be amended or waived), to increase the Offer price per Company Share payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) Company no change may be made that decreases the Per Share Amount (except as provided in Section 2.1(i)), changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, imposes adds to the conditions to the Offer, extends the Offer in addition to those other than as set forth in Annex I this Section 2.1, decreases the number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of Section 2.1(d), or modifies the conditions set forth in Annex I, or amends any other term of condition to the Offer in any manner that broadens such conditions or is adverse to the holders of Shares in Company Shares.
(c) Subject to the reasonable judgment of the Company. The initial expiration date of terms and conditions thereof, the Offer shall be remain open until midnight, New York City time, at the end of the twentieth (20th) business day after commencement of beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, 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 2.1(d) or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(d) Notwithstanding the foregoingforegoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 9.1, (xi) Merger Subsidiary Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer Offer, and (ii) if, on the initial Expiration Date or any period required by Applicable Law subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (yii) of this Section 2.1(d), (A) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties events set forth in Article 11, extend clause (iii)(a) of Annex A shall have occurred on or before the initial Expiration Date or the end of any Additional Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; providedPeriod, in each case, that Merger Subsidiary no event shall not Purchaser be required to extend the Offer beyond the termination Initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 20 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Agreement. If upon Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn right of Parent to terminate this Agreement pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Section 9.1.
(e) Purchaser may, in its sole discretiondiscretion without the consent of the Company, provide a for one subsequent offering period immediately following the Acceptance Date (“Subsequent Offering Period”) as provided in accordance with Rule 14d-11 of under the 1934 Act Exchange Act) of not less than three (3) nor more than ten (10) 20 business days immediately following (determined in accordance with Rule 14d-1(g)(3) under the Expiration Exchange Act). Notwithstanding the foregoing, no extension provided for in this Section 2.1(e) shall extend the Offer beyond the Outside Date. Merger Subsidiary Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all shares of Company Common Stock validly tendered during such subsequent offering period, as promptly as practicable after any such shares of Company Common Stock are tendered during such subsequent offering period. Purchaser shall not terminate or withdraw the Offer prior to its any scheduled Expiration Date, unless Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 9.1.
(f) In the event that this Agreement is terminated pursuant to Section 9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in accordance with Article 11 hereof. Subject any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer.
(g) The Per Share Amount shall, subject to applicable withholding of taxes, be net to the foregoingapplicable seller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreement, Merger Subsidiary shall, and Purchaser or Parent on Purchaser’s behalf shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, for all Company Shares (i) validly tendered and not withdrawn pursuant to promptly following the expiration of the Offer (the time at which Shares are first accepted and date of the acceptance for payment under the Offerpayment, the “Acceptance TimeDate”) ). If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and (ii) validly tendered in that the Subsequent Offering Periodperson requesting such payment shall have paid all transfer and other similar taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(bh) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file 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 with respect to the Offer. The Schedule TO shall include contain or shall incorporate by reference an offer to purchase (the summary term sheet required thereby and, as exhibits“Offer to Purchase”) and form of the related letter of transmittal and any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all exhibits, supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”), and . Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to all holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. 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 in any material respect, and Parent and Purchaser further agree to use reasonable best efforts to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Company Shares, in each case in all material respects as required by applicable federal securities laws. The Company shall promptly upon request of furnish to Purchaser or Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respectaction contemplated by this Section 2.1(h). Parent and Merger Subsidiary Purchaser shall cause give the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC, and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. In addition, Parent and Merger Subsidiary shall Purchaser agree to (i) provide the Company and its counsel in writing with (i) any written comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and such comments, (ii) a use reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and best efforts to provide a reasonably detailed description of any oral comments on that response Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (to which reasonable and good faith consideration shall be giveniii) unless there has been a Change of Recommendation, it being understood that provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(i) If, between the date of this Agreement and the Acceptance Date, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall provide any comments thereon as soon as reasonably practicable)be adjusted to the extent appropriate.
Appears in 1 contract
Sources: Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex II hereto, Merger Sub- sidiary shall, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five business days following the public announcement of the terms of this Agreement, com- mence an offer (and Parent shall cause Merger Subsidiary tothe "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares shares of common stock, par value $.01 per share (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company at a price of $30.50 per Share (including such associated Rights), net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below), expiration date of the Offer and not withdrawn a number of Shares thatwhich, together with the Shares then owned by Parent and/or and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding on a fully diluted basis, calculated in accordance with Section 3.5(bShares being hereinafter referred to as the "Fully Diluted Shares") (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. I hereto. Parent and Merger Subsidiary expressly reserves reserve 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; providedpro- vided that, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition addi- tion to those set forth in Annex I I, changes or modifies waives the conditions Mini- mum Condition, extends the Offer (except as set forth in Annex Ithe following sentence), or amends makes any other term of the Offer in any manner adverse change to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer set forth in Annex I which is not satisfied adverse to the hold- ers of Shares. Subject to the terms of the Offer in this Agre- ement and the satisfaction (or waived on any scheduled Expiration Datewaiver to the extent permitted by this Agreement) of the conditions to the Offer, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary Sub- sidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; provided that Merger Subsidiary has may extend the Offer if, at the scheduled expiration date of the Offer or any extension thereof any of the conditions to the Offer shall not acquired the Requisite Short Form Merger Shareshave been satisfied, until such time as such conditions are satisfied or waived, and Merger Subsidiary maymay extend the Offer for a further period of time of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, prior to the expiration date of the Offer (as so extended) and not with- drawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Fully Diluted Shares. Subject to Section 9.1, if the condition set forth in clause (ii) of the first paragraph of Annex I is not satisfied as of the date the Offer would otherwise have expired, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis extend the necessary funds), accept for payment and pay for, as promptly as practicable after Offer until the expiration earlier of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (date that is 30 days after the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) sched- uled expiration date and (ii) validly tendered the date the condition set forth in clause (ii) of the Subsequent Offering Periodfirst paragraph of Annex I is satisfied.
(b) On As soon as practicable on the date of commencement commence- ment of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC (defined below in Section 4.1(a)) a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related let- ter of transmittal (together with all any supplements or amendments and supplements thereto and including exhibits thereto, collectively the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “"Offer Documents”), ") and shall (ii) cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of ParentPar- ent, Merger Subsidiary and the Company each 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall Sub- sidiary agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO and the Offer Documents each time before any such document is 14D-1 prior to its being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof (and in any event within ten five (105) Business Days Days) after the date hereof, Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (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 any and all of the outstanding Shares at the Offer Price. The consummation of the Offer, and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to: (1i) to the condition that there shall be being validly tendered in the Offer and not properly withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a A) that number of Shares thatwhich, together with the Contributed Shares and any other Shares then subject to the Contribution Agreement and the number of Shares (if any) then owned of record by Parent and/or Merger Subsidiaryor any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole voting power, represents at least a majority of the total number of Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger, calculated in accordance with and (B) that number of Shares which represents at least a majority of the Shares then issued and outstanding, excluding from such calculation (x) the Contributed Shares and any other Shares then subject to the Contribution Agreement, (y) other Shares then owned of record or beneficially by any executive officer (within the meaning of Section 3.5(b16 under the Exchange Act) of the Company (provided, that any Shares that may be deemed to be beneficially owned by the stockholder party to the Contribution Agreement pursuant to that certain Voting Agreement dated September 30, 2005, by and between the Investor and the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Revocable Trust u/a/d December 18, 2006, as amended or extended from time to time, shall not be deemed to be beneficially owned by such stockholder for purposes of this calculation), and (z) any Shares then beneficially owned by Parent or any of its direct or indirect Subsidiaries, including the Purchaser (collectively, the “Minimum Condition”), ; and (2ii) to the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the The conditions and requirements to the Offer and to make any change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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 are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition and, other than the Minimum Condition and the Governmental Approval Condition, may be waived by the Purchaser, in its sole discretion, in whole or modifies in part at any time and from time to time, subject to this Section 1.1.
(b) Subject to the satisfaction of the Minimum Condition and the Governmental Approval Condition, and the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex I, or amends the Purchaser shall accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be promptly paid to the seller in cash, without interest, subject to any other term withholding of Taxes required by applicable Law.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing (by action of the Company Board upon the recommendation of the Special Committee), the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition or the Governmental Approval Condition, (v) amend any of the other conditions or requirements to the Offer set forth in Annex I in a manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of or (vi) add any additional conditions or requirements (other than procedural and other customary requirements for tendering Shares) to the Offer shall be the twentieth that are not expressly set forth in Annex I.
(20thd) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m. (New York City time) on the date that is the later of: (i) twenty-one (21) Business Days following the commencement of the Offer and (ii) three (3) Business Days following the Solicitation Period End Date (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, such later date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding .
(e) If on or prior to the foregoingsecond (2nd) Business Day following the Solicitation Period End Date, (x) Merger Subsidiary the Company has delivered a notice of Exempted Person in accordance with Section 5.4(b), the Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position successive periods of at least three (3) Business Days each until 5:00 p.m. (New York City time) on the SEC or Business Day immediately following the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Cut-Off Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each casehowever, that Merger Subsidiary the Purchaser shall not be required to extend the Offer if on or prior to the then scheduled Expiration Date all Competing Proposals by Exempted Persons have expired by their terms or been withdrawn or terminated. If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied, or if permitted by Section 1.1(c), waived by the Purchaser, the Purchaser shall extend the Offer for successive periods of up to ten (10) Business Days each, the length of each such period to be determined by the Purchaser in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not, and shall not be required to, extend the Offer (i) beyond November 15, 2011 (the “Initial Outside Date”), or (ii) if, on the Initial Outside Date, all of the conditions to the Offer have been satisfied, or waived by the Purchaser, other than the Minimum Condition and either or both of the Governmental Approval Condition or the condition to the Offer set forth in clause (c)(ii)(z) of Annex I, beyond December 31, 2011 (the “Extended Outside Date”); provided, further, that the Purchaser shall not be required to extend the Offer (but may elect to do so in its sole discretion) beyond the termination Business Day immediately following the Cut-Off Date, if the Company has delivered a notice of this AgreementExempted Person in accordance with Section 5.4(b), unless the Company Board has rejected the Competing Proposal giving rise to such notice and reconfirmed the Company Board Recommendation, which rejection of such Competing Proposal and reconfirmation of the Company Board Recommendation has been publicly announced by the Company. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) If upon necessary to obtain sufficient Shares to reach the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant Short Form Threshold (without regard to the Offerexercise of the Top-Up Option), Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide for a “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the 1934 Act Offer, the Purchaser shall immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of not less than three a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f) and Rule 14d-11 under the Exchange Act.
(3g) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary The Purchaser shall not terminate or withdraw the Offer prior to its any scheduled Expiration DateDate without the prior written consent of the Company, unless except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall promptly (and in accordance with Article 11 hereofany event within seventy-two (72) hours of such termination), irrevocably and unconditionally terminate the Offer. Subject If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the foregoing, including the requirements purchase of Rule 14d-11, and upon the terms and subject to the conditions of Shares in the Offer, Merger Subsidiary shall, and Parent the Purchaser shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), not accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all any Shares (i) validly tendered and not withdrawn pursuant to the Offer (and shall promptly return, and shall cause any depositary acting on behalf of the time at which Purchaser to return, in accordance with applicable Law, all tendered Shares are first accepted for payment under to the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodregistered holders thereof.
(bh) On As soon as practicable on the date of the commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that ). The Schedule TO shall include the summary term sheet required thereby andinclude, as exhibits, the Offer to Purchase and Purchase, a form of letter of transmittal and a form of summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or amendments, supplements and exhibits thereto, the “Offer Documents”). The Purchaser may, and but shall not be required to, provide guaranteed delivery procedures for the tender of Shares in the Offer. The Purchaser agrees to cause the Offer Documents to be disseminated to all holders of Shares, as and to the extent required by the Exchange Act. The Company shall Purchaser agrees to promptly upon request of Parent and Merger Subsidiary provide Parent correct any information included or incorporated by reference in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information it shall have become (or shall become known to be) false or misleading in any material respect. Parent respect or as otherwise required by applicable Law, and Merger Subsidiary shall the Purchaser agrees to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Company agrees to notify the Purchaser in writing if and to the extent that the Company becomes aware that any information provided to the Purchaser by the Company expressly for use in the Offer Documents becomes false or misleading in any material respect. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary the Purchaser shall give reasonable and good faith due consideration to any comments made the additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that counsel. In addition, the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments such comments, and any written 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, it being understood that the oral responses thereto. The Company and its counsel shall provide be given a reasonable opportunity to review any comments thereon as soon as reasonably practicable)such written responses and the Purchaser shall give due consideration to the additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇1▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date scheduled expiration of the Offer (as defined below)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 and/or or Merger Subsidiary, represents at least a majority of the total number of all Company Shares then outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), ) and (2) to 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, provided that without unless otherwise provided by this Agreement or previously approved by the prior written consent of the CompanyCompany in writing, (i) the Minimum Condition may not be waived and waived, (ii) no change may be made that changes the form of consideration to be paidpaid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies I, and (iii) the conditions Offer may not be extended except as set forth in Annex I, or amends any other term of the Offer in any manner adverse this Section 2.01(a). Subject to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to terms and in accordance with the terms conditions of this Agreement, the “Expiration Date”)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 1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer (i) if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) 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 (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 and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights Law. Following expiration of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a one or more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofAct. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the final expiration of the Offer, all Company Shares (iA) validly tendered and not withdrawn pursuant to the Offer and/or (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (iiB) validly tendered in the 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 Merger Subsidiary shall (i) file 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 shall include the summary term sheet required thereby and, as exhibitsexhibits or incorporated by reference thereto, the Offer to Purchase and a form forms of letter of transmittal and summary advertisement and other appropriate ancillary advertisement, if any, in respect of the Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall (ii) cause the Offer Documents to be disseminated to all holders of Company Shares. The Company shall promptly upon request of furnish to Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is may be required to be included by applicable securities laws or reasonably requested by Parent and Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or and 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. Parent and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (iA) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications communications, and (iiB) 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), it being understood that including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
(c) Parent and Merger Subsidiary shall timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Company Shares via the Offer Documents the information set forth in any such registration statement to the extent and its counsel shall provide any comments thereon as soon as reasonably practicable)within the time period required by Chapter 80B of the Minnesota Statutes.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex II hereto shall have occurred or be existing, Purchaser shall, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five business days following the public announcement of the terms of this Agreement, commence an offer (and Parent shall cause Merger Subsidiary tothe "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares shares of common stock, $1.00 par value (the "Shares"), of the Company at a price of $40.00 per Share, net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there at least a majority of the then issued and outstanding Shares, other than Shares owned by Purchaser, Parent, Parent's other subsidiaries and Parent's executive officers and directors, shall be have been validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration date of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) Offer and not withdrawn (the “"Minimum Tender Condition”), ") and (2) to the other conditions set forth in Annex I. Merger Subsidiary I hereto. Purchaser expressly reserves the right to waive the Minimum Tender Condition or any of the other conditions to the Offer, to increase the price per Share payable in the Offer and to make any other change in the terms of or conditions to of the Offer; provided, provided that without the prior written consent of the Company, (i) Parent shall not waive the Minimum Tender Condition may not be waived without the consent of a majority of the Independent Directors (as defined below) and (ii) no without the consent of a majority of the Independent Directors, the Purchaser shall not make any change may be made that in the terms or conditions of the Offer which (A) changes the form of consideration to be paid, paid or (B) decreases the price per Share payable in the Offer Price or (C) reduces the maximum number of Shares sought to be purchased in the Offer, Offer or (D) imposes conditions to the Offer in addition to those set forth in Annex I hereto or modifies (E) extends the conditions set forth expiration date of the Offer (except as required by law or the applicable rules and regulations of the SEC and except that the expiration date of the Offer may be extended for up to forty (40) business days in Annex I, the aggregate in the event any condition to the Offer is not satisfied) or (F) amends any other term of the Offer in any manner materially adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file with the SEC (as defined in Section 4.07) with respect to the Offer, a Tender Offer Statement on Schedule TO with respect 14D-l and a Transaction Statement on Schedule 13E-3 which will contain the offer to the Offer (together with all amendments and supplements thereto and including exhibits theretopurchase, the “Schedule TO”) that shall include information required by Rule 13e-3 under the summary term sheet required thereby and, Exchange Act (as exhibitsdefined in Section 4.03), the Offer to Purchase and a form of the related letter of transmittal and summary advertisement and other appropriate ancillary Offer documents an 6 amendment to Parent's Schedule 13D (collectively, together with any supplements or amendments or supplements thereto, collectively the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary the Purchaser and the Company each 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 it shall have been found to be or become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall the Purchaser agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company Company, the Special Committee (as defined herein) and its counsel their respective counsel, shall be given a reasonable an opportunity to review and comment on the Schedule TO 14D-l and the Offer Documents each time before any such document is filed Schedule 13E-3 prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary the Purchaser shall provide the Company Company, the Special Committee and its counsel with (i) their respective counsel, a copy of any written comments or other communications, whether written telephonic notification of any verbal comments Parent or oral, that Parent, Merger Subsidiary or their counsel the Purchaser may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt thereof and shall provide the Company, the Special Committee and their respective counsel with a copy of those comments or other communications any written responses thereto and (ii) a reasonable opportunity to participate in the response telephonic notification of any verbal responses thereto 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, it being understood that or the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Purchaser or their counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with SECTION 7.1 herein and none of the events set forth in ANNEX A shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iexisting, as promptly as practicable after the date hereof and (but in any no event within later than ten (10) Business Days days after the date hereofpublic announcement of the execution of this Agreement), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer a cash tender offer to purchase any and acquire all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) Subject to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), the conditions set forth in ARTICLE 6 hereof and (2) subject to the other conditions set forth in Annex I. Merger Subsidiary ANNEX A hereto, Purchaser shall consummate the Offer in accordance with its terms and to accept for payment and promptly pay for Shares tendered pursuant to the Offer as soon as Purchaser is legally permitted to do so under applicable law. The Offer shall be made by means of the Offer to Purchase and shall be subject to the Minimum Condition and the other conditions set forth in ANNEX A hereto (collectively, the "Offer Conditions") and shall reflect, as appropriate, the other terms set forth in this Agreement.
(b) Purchaser expressly reserves the right to waive any modify the terms and conditions of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided, that except that, without the prior written consent of the Company, Company neither Parent nor Purchaser shall (i) amend or waive the Minimum Condition may not be waived and Condition, (ii) no decrease the Offer Price, (iii) change may be made that changes the form of consideration to be paidconsideration, decreases the Offer Price or (iv) decrease 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 Isought, or amends (v) amend or impose any other term condition of the Offer in any manner adverse to the holders of Shares the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company (x) increase the amount it offers to pay per Share in the reasonable judgment Offer, and, in connection therewith, extend the period of the Company. The initial Offer to the extent required by law, (y) extend the Offer for a period not to exceed ten (10) business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer, if, immediately prior to the expiration date of the Offer shall (as it may be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementextended), the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer constitute less than ninety percent (90%) of the time at which outstanding Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (iiz) validly tendered from time to time, in its sole discretion, extend the Subsequent Offering Period.
(b) On expiration date if on the initial scheduled expiration date of commencement of the Offer, which shall be the date which is twenty (20) business days after the date the Offer is commenced, all conditions to the Offer will not have been satisfied or waived. Purchaser shall extend the Offer from time to time until a date which is not more than sixty (60) business days after commencement of the Offer if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, the conditions to the Offer set forth in ANNEX A shall not have been satisfied or waived. Any extensions of the period of the Offer shall be subject to termination of this Agreement pursuant to Section 7.
1. The Company agrees that no Shares held by the Company will be tendered pursuant to the Offer. Except as otherwise required by the Shareholders' Agreement, the Company's stockholders shall retain their withdrawal rights during any extension of the Offer or subsequent offering period.
(c) As soon as practicable on the date the Offer is commenced, Parent and Merger Subsidiary Purchaser shall file 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 “Offer. The Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, TO will contain or incorporate by reference the Offer to Purchase and a form of letter of transmittal and transmittal, summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), documents. Parent and shall Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to all holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Notwithstanding the foregoing, Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or Purchaser shall, at a minimum, disseminate the Offer DocumentsDocuments by (i) delivery of the Offer Documents to the beneficial holders of the Shares in compliance with Rule 14d-4(a)(3) promulgated under the Exchange Act and (ii) summary publication appearing in The Wall Street Journal or similar newspaper with national circulation, in compliance with Rule 14d-4(a)(2) promulgated under the Exchange Act. Each of ParentParent and Purchaser, Merger Subsidiary on the one hand, and the Company agrees Company, on the other hand, will 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent , and Merger Subsidiary shall Purchaser will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 the opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall Purchaser will provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Documents, promptly after the receipt of those such comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments communications, and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that consult with the Company and its counsel prior to responding to any such comments or other communications.
(d) The parties agree that the Offer Conditions are for the sole benefit of Purchaser and, except as provided in SECTION 1.1(B), may be asserted by Purchaser regardless of the circumstances giving rise to such Offer Condition or may be waived by Purchaser, in whole or in part, at any time and from time to time, in its sole discretion; provided however, that neither Purchaser nor Parent may assert the nonsatisfaction of any Offer Condition if such nonsatisfaction is the result of Purchaser or Parent's breach of any representation, warranty, agreement or covenant contained herein. The failure by Purchaser at any time to exercise any of the foregoing rights shall provide not be deemed a waiver of any comments thereon as soon as reasonably practicable)such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to other facts or circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Merger Agreement (U S Realtel Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 hereof and none of the events set forth in Annex I shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iexisting, as promptly as practicable (but in no event later than five business days after the date hereof and in any event within ten (10) Business Days after public announcement of the date hereofexecution of this Agreement), Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be , subject only (1) to the condition that there shall be being validly tendered and not withdrawn in accordance with prior to the terms expiration of the Offer, prior to the Expiration Date (as defined below), a that number of Shares that, together with which represents at least 51% of the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basisbasis (after giving effect to the 7 conversion or exercise of all outstanding options, calculated in accordance with Section 3.5(bwarrants and other rights and securities exercisable or convertible into Shares) (the “"Minimum Condition”), " and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves I hereto, and shall consummate the right to waive any Offer in accordance with its terms. The obligations of the conditions Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to make any change in the terms of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes other conditions to the Offer in addition to those set forth in Annex I or modifies hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex II hereto. The Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought, or amends amend any other term condition of the Offer in any manner adverse to the holders of the Shares in without the reasonable judgment written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer, which shall be twenty (20) business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided, however, that if, immediately prior to the initial expiration date of the Offer shall (as it may be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementextended), the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (equal less than 90% of the time at which Shares are first accepted for payment under the Offeroutstanding Shares, the “Acceptance Time”Purchaser may extend the Offer for a period not to exceed ten (10) and (ii) validly tendered in business days, notwithstanding that all conditions to the Subsequent Offering Period.
(b) On the Offer are satisfied as of such expiration date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided The Primary Borrower, ▇▇▇▇▇ 2 and Bidco each undertake with each of the Finance Parties that nothing it shall have occurred and be continuing that(or shall procure that Bidco shall, had as applicable):
(i) until the earlier of the date the Offer been commencedlapses or is finally closed, would give rise to a right to terminate comply in all material respects with the Offer pursuant to any of Code, the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇Financial Services ▇▇▇ ▇▇▇▇ and the Act and all other applicable laws and regulations relevant in the context of the Offer;
(ii) provide the Facility Agent with such information regarding the progress of the Offer as it may reasonably request and, provided no breach of the Code would result, all material written advice given to it in respect of the Offer;
(iii) not declare the Offer unconditional at a level of acceptances below that required by Rule 10 of the Code;
(iv) ensure that at no time shall circumstances arise whereby a mandatory offer is required to be made by the terms of Rule 9 of the Code in respect of the Target Shares;
(v) not, without the prior consent of the Arrangers (acting on the instructions of the Majority Banks), waive, amend or agree or decide not to enforce, in whole or in part, the conditions of the Offer set out in paragraphs (c) (Referral) or (b) (Coalco Disposal Agreement) of Appendix 1 to the Press Release;
(vi) not, without the prior consent of the Arrangers (acting on the instructions of the Majority Banks), such consent not to be unreasonably withheld or delayed, waive, amend (but not including extending the Offer period, which shall be at the Primary Borrower's discretion provided that the Offer is closed within the period required by clause 10.4(f) below) or agree or decide not to invoke, in whole or in part, in any material respect, any of the other material conditions of the Offer (and the Primary Borrower, ▇▇▇▇▇ 2 and Bidco acknowledge that the total Indebtedness of the Target Group requiring to be refinanced, and the amount of any contingent liabilities of the Target Group which would or might crystallise upon the Offer becoming unconditional, are material), provided that the Primary Borrower, ▇▇▇▇▇ 2 and Bidco shall not be in breach of this clause (vi) if they fail to invoke a condition of the Offer because the Takeover Panel has directed that they may not do so.
(b) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco acknowledges and confirms to the Finance Parties that if any event or circumstance occurs which under the conditions of the Offer may entitle Bidco to lapse the Offer, Bidco will promptly notify the Facility Agent and if in the reasonable opinion of the Majority Banks such event or circumstance would have a material and adverse affect on the ability of the Borrowers to comply with their material obligations under this Agreement (or the adequacy of the facilities available for refinancing indebtedness or other liabilities of the Target Group) and the Facility Agent acting on the instructions of the Majority Banks so requests, Bidco will promptly seek the consent of the Takeover Panel to lapse the Offer. If the Takeover Panel consents to Bidco's lapsing the Offer in the light of such event or circumstance, Bidco shall then lapse the Offer promptly.
(c) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco shall keep the Arrangers informed and consult with them as to:
(i) the Offer terms of any undertaking or assurance proposed to purchase be given by it, any and all of its Affiliates or any member of the outstanding Shares at Target Group to the Director General, the Director General of Gas Supply or the Secretary of State for Trade and Industry in connection with the Offer;
(ii) the terms of any modification to any of the Licences proposed in connection with the Offer;
(iii) any terms proposed in connection with any authorisation or determination necessary or appropriate in connection with the Offer; If the Majority Banks (acting reasonably) state that in their opinion such proposed undertakings(s), assurance(s), modification(s) and/or term(s), or compliance therewith, would materially and adversely affect the ability of the Group to comply with its material obligations under the Finance Documents, Bidco shall promptly request the Takeover Panel to confirm (and shall use its reasonable endeavours to ensure that the Takeover Panel does confirm) that the Takeover Panel will not object to the lapsing of the Offer Price. The Offer shall be subject only (1) as a result of the non-satisfaction of whichever of the conditions in Appendix 1 to the condition Press Release is relevant, provided that there shall Bidco will not be validly tendered obliged to lapse the Offer as a result of any proposed modifications of any Licence or any proposed undertakings or assurances from the Primary Borrower, ▇▇▇▇▇ 2, Bidco or any member of the Target Group to be given to the Director General to the extent that such modifications, undertakings or assurances (as the case may be) are no more onerous than those set out and not withdrawn required by the Director General from Pacificorp and/or the Target Group in accordance with the terms of the Monopolies and Mergers Commission Report dated 19 December 1997 into the original Pacificorp offer for the Target. If the Takeover Panel gives a confirmation substantially in those terms, Bidco shall at the earliest opportunity declare the Offer lapsed by reason of the non- fulfilment of such condition(s).
(d) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco acknowledges and confirms to the Finance Parties that the Offer, prior or an accompanying circular to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority shareholders of the total number Target, should also contain a super class one resolution to be passed by the shareholders of Shares outstanding the Target, seeking approval of the completion of the Coalco Disposal Agreement with effect on a fully diluted basisand from the Unconditional Date. Where the context permits, calculated all references in accordance with Section 3.5(b) this Agreement (and in the “Minimum Condition”), and (2Offer) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right Offer being accepted and/or becoming unconditional shall be construed to waive any include such approval being granted.
(e) Each of the conditions Primary Borrower, ▇▇▇▇▇ 2 and Bidco undertakes to the Offer and to make any change in the terms of or conditions to the Offer; provided, Finance Parties that without the prior written consent within 15 days of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term date on which acceptances of the Offer in any manner adverse to the are received from holders of Shares in the reasonable judgment not less than 90% of the Company. 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 Exchange Act) (such date, or such subsequent date Target Shares to which the expiration Offer relates, Bidco shall procure that a director of Bidco issues a statutory declaration pursuant to section 429(4) of the Offer is extended Companies ▇▇▇ ▇▇▇▇, gives notice to all remaining holders of the Target Shares that it intends to acquire their shares pursuant to section 429 of the Companies ▇▇▇ ▇▇▇▇, and Bidco shall subsequently purchase all such shares.
(f) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco undertakes to the Finance Parties that Bidco shall in accordance with any event give notice to close the terms Offer no later than 120 days after the date of this Agreement, unless the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties Arrangers agree in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required their absolute discretion to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodsuch period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 7.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereofPurchaser shall commence, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Exchange Act, the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to purchase any and all commence the Offer. Purchaser shall not, without the consent of the outstanding Special Committee, accept for payment any Shares at tendered pursuant to the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents unless at least a majority of the total number then issued and outstanding Shares, without regard to the Parent Shares, shall have been validly tendered and not withdrawn prior to the expiration of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) the Offer (the “"Minimum Condition”"), . The obligation of Purchaser to accept for payment and (2) pay for Shares tendered pursuant to the Offer shall be subject to the satisfaction of the Minimum Condition and the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition (except the conditions Minimum Condition), to increase the Offer Per Share Amount and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that however, that, without the prior written consent of the Special Committee and, to the extent required by the Company's Articles of Incorporation, the approval of a majority of the "Disinterested Directors" (as defined in the Company's Articles of Incorporation), Purchaser will not (i) decrease the Minimum Condition may not be waived and Per Share Amount, (ii) no change may be made that changes reduce the form of consideration to be paid, decreases the Offer Price or the maximum number of Shares sought to be purchased in the Offer, imposes (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer in addition to those set forth in Annex I A hereto or modifies (v) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of Shares. Notwithstanding the foregoing, in the event that all conditions set forth in Annex IA, or amends any other term of including the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer Minimum Condition, shall be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are have been satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired when taken together with the Requisite Short Form Merger Parent Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 does not constitute at least 80% of the 1934 Act of then issued and outstanding Shares (the "Extension Right Condition"), Purchaser may extend the Offer for a period or periods (the "Extension Periods") aggregating not less than three (3) nor more than ten (10) 20 business days immediately following after the Expiration Date. Merger Subsidiary shall not terminate or withdraw later of (x) the initial expiration date of the Offer prior to its Expiration Dateand (y) the date on which all other conditions set forth in Annex A shall have been satisfied or waived. If, unless this Agreement is terminated at the beginning of the first Extension Period, all conditions set forth in accordance with Article 11 hereof. Subject to the foregoingAnnex A, including the requirements Minimum Condition, were satisfied or waived and, at the expiration of Rule 14d-11the last Extension Period, the conditions set forth in paragraphs (a) and (b) of Annex A and the Minimum Condition are satisfied or waived, then, regardless of whether the Extension Right Condition or any of the conditions set forth in paragraphs (c), (d), (e), (f), (g), (h) and (i) of Annex A are satisfied, Purchaser shall accept for payment and pay 9 3 for all Shares validly tendered and not withdrawn prior to the expiration of the last Extension Period. For purposes of the immediately preceding sentence, the conditions set forth in paragraph (a) of Annex A shall be deemed satisfied or waived at the expiration of the last Extension Period unless, after the beginning of the first Extension Period, an action or proceeding of the type described in paragraph (a) of Annex A shall have been instituted or the complaint in an action or proceeding of the type described in paragraph (a) of Annex A pending prior thereto shall have been amended, supplemented or modified after such beginning in a manner that, in the reasonable judgment of Parent, is reasonably likely to result, directly or indirectly, in any of the consequences referred to in such paragraph (a). The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, Merger Subsidiary shallwithout limitation, the Minimum Condition and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsExtension Right Condition), accept for payment and pay forPurchaser shall pay, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodwithdrawn.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article X and that none of the events set forth in EXHIBIT 1.1 hereto shall have occurred and or be continuing thatexisting, had Buyer shall, on or before the Offer been commenced, would give rise to a right to terminate third Business Day following the Offer pursuant to any later of (1) receipt from Company of the conditions set forth materials described in Annex Ithe first sentence of Section 1.2(a), as promptly as practicable after and (2) receipt from Company of its Schedule 14d-9 in a form that satisfies the date hereof and in any event within ten (10) Business Days after the date hereofrequirements of all applicable Law, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under 14d-2(a) of the ▇▇▇▇ ▇▇▇Securities Act) an offer (the Offer "OFFER") to purchase any and all outstanding shares of the outstanding Shares at common stock of Company, par value $.01 per share ("COMPANY COMMON STOCK"), for a purchase price of $3.46 per share (subject to appropriate adjustment in the event of any stock splits, reverse stock splits, combinations, stock dividends, recapitalizations, redenominations of share capital and similar events), less any dividends declared or paid after the date hereof and on or before the Offer PriceCompletion Date (the "OFFER PRICE"), net to the seller thereof, in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder of the Company Common Stock, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an offer to purchase and related letter of transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer shall be subject the 25th Business Day from and after the date the Offer is commenced (the "INITIAL EXPIRATION DATE"). The obligation of Buyer to accept for payment, purchase and pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject, except as provided in Section 1.1(b), only to the satisfaction of (1i) to the condition that there shall be at least 50.1% of the then outstanding shares of Company Common Stock (including any shares of Company Common Stock owned by Buyer, or any Affiliate of Buyer, on the date such shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) Offer (the “Minimum Condition”"MINIMUM CONDITION"), and (2ii) to the other conditions set forth in Annex I. Merger Subsidiary EXHIBIT 1.1 hereto; PROVIDED, HOWEVER, that Buyer expressly reserves the right to waive any of the conditions to the Offer (other than the Minimum Condition) and to make any change changes in the terms or conditions of or the Offer (other than the Minimum Condition) in its sole discretion, subject to Section 1.1(b). Notwithstanding the previous sentence, Buyer may waive the Minimum Condition so long as (x) it has irrevocably waived all other conditions to the Offer (and may, as a legal matter, irrevocably waive such conditions and otherwise purchase shares of Company Common Stock pursuant to the Offer; provided), that without (y) Buyer has irrevocably exercised or irrevocably committed to exercise the Related Option, and (z) the shares of Company Common Stock acquired pursuant to the Offer and through such Related Option exercise would satisfy the Minimum Condition.
(b) Without the prior written consent of the Company, Buyer shall not (i) decrease the Minimum Condition may not be waived and Offer Price, (ii) no change may be made that changes decrease the form percentage of consideration to be paid, decreases the Offer Price or the number shares of Shares Company Common Stock sought in the Offer, imposes (iii) change the form of consideration payable in the Offer, (iv) impose any conditions to the Offer in addition to those set forth in Annex I or modifies the Minimum Condition and the conditions set forth in Annex IEXHIBIT 1.1 hereto, (v) except as provided below or as required by any rule, regulation, interpretation or position of the SEC applicable to the Offer, change the expiration date of the Offer, or amends (vi) otherwise amend or change any other material term or condition of the Offer in any a manner adverse to the holders of Shares shares of Company Common Stock. Notwithstanding anything in this Agreement to the reasonable judgment contrary, without the consent of Company, Buyer shall have the right to extend the Offer beyond the Initial Expiration Date in any of the Company. The initial following events: (A) from time to time, but in no event later than the date that is 60 days from the Initial Expiration Date, if, at the Initial Expiration Date (or the extended expiration date of the Offer shall be Offer, if applicable), any of the twentieth (20th) business day after commencement of conditions to the Offer (determined in accordance with Rule 14d-1(g)(3) under other than the Exchange Act) (such dateMinimum Condition, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementclause does not apply) shall not have been satisfied or waived, the “Expiration Date”). Notwithstanding the foregoinguntil such conditions are satisfied or waived, (xB) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and applicable Law, (yC) if any condition all conditions to the Offer is not other than the Minimum Condition are satisfied or waived on any scheduled Expiration Datewaived, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods not to exceed ten Business Days each (each in but no more than an aggregate of 30 Business Days for all such extensions), or (D) if all conditions to the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions Offer are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend waived but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares shares of Company Common Stock validly tendered and not withdrawn is less than 90% of the then outstanding shares of Company Common Stock, for an aggregate period not to exceed 20 Business Days (for all such extensions), provided that Buyer shall accept and promptly pay for all shares of Company Common Stock tendered prior to the date of such extension pursuant to this clause (D) (the "OFFER CONDITIONS SATISFACTION DATE") and shall waive any condition to the consummation of the Merger (other than the condition in Section 9.1(c)) that may fail to be satisfied during such extension. In addition, Buyer shall, if requested by Company, from time to time extend the Offer if, at the Initial Expiration Date (or any extended expiration date of the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Sharesincluding pursuant to this sentence, Merger Subsidiary mayif applicable), in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 any of the 1934 Act of following have not less than three been satisfied: (1) the Minimum Condition, (2) the HSR Condition, (3) nor more than ten the conditions set forth in clause (10a), clause (b), clause (g) business days immediately or clause (h) of EXHIBIT 1.1 hereto, and/or (4) provided that such conditions can be satisfied by Company on or before the 40th Business Day following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Initial Expiration Date, unless this Agreement is terminated and provided that Company immediately ceases, and does not subsequently enter into, any discussions or negotiations with any Person concerning an Acquisition Proposal pursuant to Section 8.8(a), the conditions set forth in accordance with Article 11 hereofclause (c)(ii), clause (d), clause (e) or clause (j) of EXHIBIT 1.1 hereto, for one or more periods not to exceed ten Business Days each (but for no longer than an aggregate of 40 Business Days after the Initial Expiration Date). Subject Upon prior satisfaction or waiver of all of the conditions to the foregoing, including the requirements of Rule 14d-11, and upon the terms Offer and subject to the terms and conditions of the Offerthis Agreement, Merger Subsidiary shall, and Parent Buyer shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment payment, purchase and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (i) shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer (as soon as reasonably practicable after the time at which Shares are first accepted for payment under Offer Conditions Satisfaction Date and then, solely to the extent purchasable and payable pursuant to the terms of this Agreement but not previously purchased or paid for, again after the expiration of the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(bc) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Buyer shall file or cause to be 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”)"SCHEDULE TO") with respect to the Offer. Buyer agrees that the Schedule TO will comply as to form and content in all material respects with the applicable provisions of the federal securities Laws, and shall cause the Offer Documents will not contain any untrue statement of a material fact or omit to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is state any material fact required to be included stated therein or necessary in order to make the statements made therein, in light of the circumstances under with they were made, not misleading, and will contain the offer to purchase and form of the related letter of transmittal (such Schedule TO or and such documents included therein pursuant to which the Offer Documentswill be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Each of Parent, Merger Subsidiary Buyer and the Company agrees promptly each agree to correct promptly 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. Parent respect and Merger Subsidiary shall cause to supplement the information provided by it specifically for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Buyer agrees to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock, in each case, as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration . Buyer agrees to any comments made by the provided to Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written communications that Buyer or oral, that Parent, Merger Subsidiary or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)thereof.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing (and be continuing thatshall not have been waived by the Purchaser), had the Purchaser shall commence the Offer been commencedas promptly as reasonably practicable after the date hereof, would give rise but in no event later than five business days after the public announcement of the execution of this Agreement. The Purchaser shall, on the terms of and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for up to 27,000,000 Shares validly tendered and not withdrawn pursuant to the Offer (or such other number of Shares as represents an absolute majority of the excess of (i) all shares of Company Common Stock outstanding on the Expiration Date on a fully-diluted basis, minus (ii) the total number of Shares issuable upon exercise of all outstanding employee stock options, with 27,000,000 Shares or such other number being herein referred to as the "50% Share Number") as soon as practicable after the later of the satisfaction of the conditions of the Offer and the expiration of the Offer; provided, however, that no such payment shall be made until after the calculation of the applicable proration factor in the Offer. The obligation of the Purchaser to purchase and pay for shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered to the Purchaser pursuant to the Offer. The Purchaser expressly reserves the right to terminate waive any of such conditions, to increase 2 the price per Share payable in the Offer pursuant 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, reduces the number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer, modifies any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer A hereto in any manner adverse to the holders of Shares or, except as provided in the reasonable judgment of next two sentences, extends the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser's obligation to accept for payment and to pay for the Shares shall not be satisfied or waived, or (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC 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 (y) if any the condition to the Offer is set forth in clause (i) of the first paragraph of Annex A has not been satisfied or waived on any waived, the Purchaser shall extend the Offer from time to time for a period or successive periods not to exceed 10 business days each after the previously scheduled Expiration Date, Merger Subsidiary expiration date of the Offer. The Per Share Cash Amount shall, subject to the rights applicable withholding of the parties in Article 11taxes, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant net to the Offerseller in cash, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1") that with respect to the Offer. The Schedule 14D-1 shall include contain or incorporate by reference an offer to purchase (the summary term sheet required thereby and, as exhibits, the "Offer to Purchase Purchase") and a form forms of the related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectively, together with any all amendments or and supplements thereto, the “"Offer Documents”"), . The Parent and the Purchaser shall cause the Offer Documents to be disseminated to all the holders of Sharesthe Shares as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, will 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent , and Merger Subsidiary shall the Purchaser will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the 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 on upon the Schedule TO and the Offer Documents each time 14D-1 before any such document it is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Merger Agreement (Alumax Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred previously been terminated in accordance with Section 7.1, the Company has fulfilled its obligation to provide information to Parent and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer Purchaser pursuant to any of Section 1.1(h) and the conditions set forth Company is prepared (in Annex Iaccordance with Section 1.2(b), to file the Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) on the same date as promptly as practicable after the date hereof Purchaser commences the Offer, the Purchaser shall, and in any event Parent shall cause the Purchaser to, within ten (10) 10 Business Days after the date hereofof the initial public announcement of this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Exchange Act, the Offer. The obligation of the Purchaser to accept for payment or pay for any shares validly tendered in the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer not properly withdrawn shall be subject only solely to: (1i) to the condition that there shall be being validly tendered in the Offer and not properly withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a that number of Shares thatwhich, together with the Shares number of Shares, if any, then owned of record by Parent and/or Merger Subsidiaryor the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, voting power, represents at least a majority of the total number of Shares then outstanding (determined on a fully diluted basisFully Diluted Basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a Fully Diluted Basis) and entitled to vote upon the adoption of this Agreement on the date Shares are accepted for payment (collectively, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), ; and (2ii) to the satisfaction, or waiver by Parent or the Purchaser in their sole discretion, of the other conditions and requirements set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions I.
(b) Subject to the Offer and to make any change in the terms satisfaction of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paidsatisfaction, decreases the Offer Price or waiver by Parent or the number Purchaser in their sole discretion, of Shares sought in the Offer, imposes other conditions to the Offer in addition to those set forth in Annex I or modifies the conditions and requirements set forth in Annex I, the Purchaser shall, and Parent shall cause the Purchaser to, accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Purchaser is legally permitted to do so under applicable Law (the date and time of acceptance for payment of such Shares, the “Acceptance Time”). Parent shall provide or amends cause to be provided to the Purchaser on a timely basis funds sufficient to purchase and pay for any other term and all Shares that the Purchaser becomes obligated to accept for payment and purchase pursuant to the Offer. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and the Purchaser expressly reserve the right to increase the Offer Price, waive any condition to the Offer (except the Minimum Condition) or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify any of the other conditions and requirements to the Offer in a manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of Shares, (vi) impose additional conditions to the Offer shall be or (vii) extend the twentieth (20th) business day after commencement of the Offer (determined Expiration Date other than in accordance with Rule 14d-1(g)(3this Agreement.
(d) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 9:00 p.m. (Eastern time) on July 1, 2010 (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date on which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). .
(e) Notwithstanding anything in this Agreement to the foregoingcontrary, the Purchaser shall be permitted and required to extend the Offer from time to time only as follows (xand the Purchaser and Parent shall not extend the Offer for any other reason without the prior written consent of the Company) Merger Subsidiary (i) if on any then-scheduled Expiration Date any of the conditions to the Offer (including the Minimum Condition or the other conditions and requirements set forth in Annex I) have not been satisfied or, to the extent permitted, waived by Parent or the Purchaser, then the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for successive periods of 10 Business Days each in order to permit the satisfaction of such condition or conditions or, to the extent permitted, the waiver of such condition or conditions, and (ii) the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and Offer.
(yf) if any condition If necessary to obtain sufficient Shares to reach the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject Short Form Threshold (without regard to Shares issuable upon the rights exercise of the parties in Article 11, extend the Offer for one Top-Up Option or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide for a “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 of under the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofExchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary the Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Purchaser to, immediately accept for payment payment, and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) that are validly tendered and not withdrawn pursuant to the Offer during such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the time at which Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall, and Parent shall cause the Purchaser to terminate the Offer promptly. If the Offer is terminated by the Purchaser, or this Agreement is terminated prior to the purchase of Shares are first accepted for payment under in the Offer, the “Acceptance Time”) Purchaser shall promptly return, and (ii) validly shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Subsequent Offering PeriodOffer to the registered holders thereof.
(bh) On the date of the commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that ). The Schedule TO shall include the summary term sheet required thereby andinclude, as exhibits, : the Offer to Purchase and Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement and other appropriate ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent all information concerning the Company that may be reasonably requested by Parent in connection with any action contemplated by this Section 1.1(h). Parent and shall the Purchaser agree to cause the Offer Documents to be disseminated to all holders of Shares, as and to the extent required by the Exchange Act, the SEC or its staff or The New York Stock Exchange (the “NYSE”). The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees promptly Company, on the other hand, agree to correct promptly any information provided by it such party for use in the Schedule TO or the Offer Documents 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. respect or as otherwise required by applicable Law, and Parent and Merger Subsidiary shall the Purchaser agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The No representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Except in connection with a disclosure regarding a Change of Board Recommendation or an Acquisition Proposal received by the Company, the Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary the Purchaser shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that counsel. In addition, except in connection with a disclosure regarding a Change of Board Recommendation or an Acquisition Proposal received by the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Company, Parent and Merger Subsidiary the Purchaser shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments such comments, and any written 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, it being understood that the oral responses thereto. The Company and its counsel shall provide be given a reasonable opportunity to review and comment upon any comments thereon as soon as reasonably practicable)such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(i) The Offer Price shall be automatically adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to shares of Company Common Stock occurring or having a record date on or after the date of this Agreement and prior to the payment by the Purchaser for the Shares.
Appears in 1 contract
Sources: Merger Agreement (Sybase Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and hereof, but in any no event within ten (10) later than five Business Days after following the date hereofpublic announcement of the execution of this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) amend the Offer to (i) increase the purchase any and all of price to $89.50 per Share, net to the outstanding Shares at seller in cash, (ii) provide that the conditions to the Offer Priceshall be as set forth in Annex I and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiaryand its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully fully-diluted basis, calculated in accordance with Section 3.5(b) basis (the “Minimum Condition”), ) and (2) to the other conditions set forth in Annex I. I and to no other conditions. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, provided that without the prior written consent of the Company, Company (iwhich consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived and waived, (iiB) no change may be made that changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, imposes amends or adds to the conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment stockholders of the Company. The initial Company and (C) the expiration date of the Offer shall not be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)except as otherwise provided herein. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof Nasdaq Global Select Market applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Offer; provided that in no event shall Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary has not acquired shall, if requested by the Requisite Short Form Merger SharesCompany, Merger Subsidiary or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with 2 Table of Contents Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofAct. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i1) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii2) validly tendered in the Subsequent Offering PeriodPeriod (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(b) On As promptly as practicable after the date of commencement hereof, but in no event later than five Business Days following the public announcement of the Offerexecution of this Agreement, Parent and Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC a Tender Offer Statement on Schedule TO with respect an amendment to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that , which shall include the summary term sheet required thereby and, as exhibits, the Offer a revised offer to Purchase purchase and a form of letter of transmittal and summary advertisement reflecting the terms and other appropriate ancillary Offer documents conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO or and 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. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SECSEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly promptly, but in no event later than twelve hours, after the receipt of those 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in Exhibit A --------- attached hereto and made a part hereof shall have occurred or be existing (unless such event shall have been waived by Parent), Parent shall cause Purchaser to commence, and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, Purchaser shall commence as promptly as practicable practicable, but in no event later than the fifth business day after the date hereof and in any event within ten (10) Business Days after the date hereofof this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PricePer Share Amount. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (1i) to the condition (the "Minimum Condition") that there the number of Shares that, when combined with the Shares already owned by Purchaser and its direct or indirect subsidiaries, constitute at least eighty percent (80%) of the then outstanding Shares shall be have been validly tendered and not withdrawn in accordance with prior to the terms expiration of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2ii) to the satisfaction or waiver of the other conditions set forth in Annex I. Merger Subsidiary Exhibit A attached hereto. Purchaser expressly reserves --------- the right to waive any of such condition (other than the conditions Minimum Condition), to increase the Offer Per Share Amount payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the OfferOffer (notwithstanding Section 8.3); provided, however, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, which (i) decreases the Offer Price or the number of Shares sought Per Share Amount payable in the Offer, (ii) reduces the maximum number of Shares to be purchased in the Offer, (iii) imposes conditions to the Offer in addition to those set forth in Annex I Exhibit A hereto, (iv) amends or modifies changes the terms and --------- conditions set forth in Annex I, or amends any other term of the Offer in any manner materially adverse to the holders of Shares (other than Parent and its subsidiaries) or (v) changes or waives the Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller, without interest thereon, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition) and unless the Company otherwise consents in writing, Purchaser shall accept for payment and pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As soon as reasonably practicable on the date the Offer is commenced, but in no event later than the fifth business day after the date of this Agreement, Purchaser shall file with the Securities and Exchange Commission ("SEC") and disseminate to holders of Shares, to the extent required by law, a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase the Shares, (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"). Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable judgment opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC. The written information supplied or to be supplied by the Company for inclusion in the Offer Documents will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. Parent and Purchaser will provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent or Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof and will provide the Company and its counsel with a copy of any written response and telephonic notification of any oral response of Parent, Purchaser or their counsel. In the event that the Offer is terminated or withdrawn by Purchaser, Parent and Purchaser shall cause all tendered Shares to be returned promptly (and to the extent within their power, within five (5) business days) to the registered holders of the Shares represented by the certificate or certificates surrendered to the paying agent designated in the Offer Documents.
(c) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an "Expiration Date"); provided, however, that without the consent of the Board, Purchaser may (and, at the request of the Company. The initial expiration date , shall): (i) from time to time extend the Offer (each such individual extension not to exceed ten (10) business days after the previously scheduled Expiration Date), if at the scheduled Expiration Date any of the conditions of the Offer shall be not have been satisfied or waived, until such time as such conditions are satisfied or waived to the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of extent permitted by this Agreement, the “Expiration Date”). Notwithstanding the foregoing, ; or (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waivedOffer; provided, however, that, in each caseno event shall the Offer be extended beyond March 29, that Merger Subsidiary shall not be required 2002. Parent agrees to cause Purchaser to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant from time to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) time in accordance with Rule 14d-11 this Section 1.1(c) for the shortest time periods which it reasonably believes are necessary until the consummation of the 1934 Act Offer if the conditions of the Offer shall not less have been satisfied or waived so long as this Agreement shall not have been terminated in accordance with Article VIII hereof.
(d) Parent shall cause Purchaser to pay to Mellon Investor Services LLC, or such other exchange agent as is reasonably satisfactory to Parent and the Company (the "Paying Agent"), in immediately available United States funds not later than three (3) nor more than ten (10) 12:00 noon or such later time as the parties may agree on the first business days day immediately following the Expiration Date, an amount equal to the product of the Per Share Amount and all issued and outstanding Shares on such date excluding any treasury Shares and any Shares already owned by the Parent or the Purchaser (the "Total Consideration"). Merger Subsidiary The Total Consideration shall not terminate be invested by the Paying Agent as directed by Parent in direct obligations of the United States, obligations for which the full faith and credit of the United States is pledged to provide for the payment of principal and interest, commercial paper rated of the highest quality by ▇▇▇▇▇'▇ Investors Services, Inc. or withdraw Standard & Poor's Ratings Group or certificates of deposit, bank repurchase agreements or bankers' acceptances of a commercial bank having at least $1,000,000,000 in assets (collectively, "Permitted Investments") or in money market funds which are invested in Permitted Investments, and any net earnings with respect thereto shall be paid to Parent as and when requested by Parent. The Paying Agent shall, promptly after the Offer prior to its Expiration Date, unless this Agreement is terminated pay the applicable Per Share Amount to all holders of Shares duly tendered in accordance with Article 11 hereofthe Offer. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions Any of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and Total Consideration not withdrawn so paid pursuant to the Offer (shall be disbursed by the time at which Shares are first accepted for payment under Paying Agent pursuant to the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement terms of the Offer, Parent and Plan of Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”defined in Section 2.1), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company Total Consideration shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required not be used for any other purpose except as otherwise agreed to be included in the Schedule TO or the Offer Documents. Each of by Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in paragraphs (a), (b), (c) or (d) of Annex I shall have occurred and be continuing that, had the Offer been commenced, would give rise and shall be likely to a right to terminate the Offer pursuant to any be continuing as of the conditions set forth End Date (as defined in Annex ISection 8.1(b)(iii)), as promptly as practicable after the date hereof of this Agreement (and in any event within ten (10) Business Days after not later than the date hereofon which the Company files a Schedule 13E-3 with the SEC (as defined in Section 1.1(f)) pursuant to Regulation M-A under the Securities Exchange Act of 1934, Merger Subsidiary as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)), the Buyer shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any for cash all outstanding shares of Common Stock that are not already owned by Danisco and all of the outstanding Shares its subsidiaries, at the Offer Price. The Offer shall be subject only to (1i) to the condition that there shall be validly tendered in the Offer and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a expiration of the Offer that number of Shares thatshares of Common Stock which, together with the Shares then 25,000,000 shares of Common Stock beneficially owned by Parent and/or Merger Subsidiary, represents at least a majority Danisco and its subsidiaries as of the total number date hereof, and the 25,000,000 shares of Shares outstanding on a fully diluted basisCommon Stock beneficially owned by
(A) all shares of Common Stock held by Danisco and its affiliates, calculated (B) all shares of Common Stock held by E▇▇▇▇▇▇ and its affiliates, and (C) all shares of Common Stock held by each Person who is an officer or director of the Company or any Company Subsidiary (as defined in accordance with Section 3.5(b3.2) or who is an affiliate of any such officer or director (the “Minimum Majority of the Minority Condition”), and (2iii) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves I.
(b) The Offer shall be made by means of an offer to purchase (the right “Offer to waive any Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition, the Majority of the Minority Condition and the other conditions set forth in Annex I.
(c) The Buyer shall not decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of shares of Common Stock sought in the Offer, waive the Majority of the Minority Condition, impose additional conditions to the Offer and to make any or (except as expressly permitted in this Section 1.1) extend or otherwise change in the terms expiration date of or conditions to the Offer; provided, that and shall not amend or supplement any condition to or provision of the Offer, in each case without the prior written consent of the Company; provided, however, that (w) the covenants of E▇▇▇▇▇▇ and Danisco in the Stock Purchase Agreement to sell and to purchase, respectively, shares of capital stock of the Company shall not be deemed to require consent of the Company hereunder, (ix) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, 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, or amends if on any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial scheduled expiration date of the Offer (as such date may have been extended in accordance with this Agreement), all conditions to the Offer shall be not have been satisfied or waived, the twentieth Buyer may (20thby written notice delivered to the Company), from time to time, in its sole discretion, extend the expiration date of the Offer for successive periods of up to 10 business days up to (but not beyond) business day after commencement the End Date, (y) if on any scheduled expiration date of the Offer (determined as such date may have been extended in accordance with Rule 14d-1(g)(3this Agreement) under all conditions to the Exchange Act) Offer shall not have been satisfied or waived the Company may (such dateby written notice delivered to the Buyer), or such subsequent date from time to which time in its sole discretion, require the Buyer to extend the expiration date of the Offer is extended pursuant for successive periods of up to and in accordance with 10 business days up to (but not beyond) the terms End Date, and, if the Company so requires the Buyer to extend the expiration date of this Agreementthe Offer, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary Buyer shall extend the Offer for any period required by any rule, regulation, interpretation or position expiration date of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment ofrequested period, and payment for, all Shares validly tendered and not withdrawn pursuant to (z) the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Buyer may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of under the 1934 Act of not less than three Exchange Act.
(3d) nor more than ten (10) business days immediately following The Buyer may increase the Expiration DateOffer Price and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s consent. Merger Subsidiary The Buyer shall not terminate or withdraw the Offer prior to its Expiration Date, unless any scheduled expiration date (as such date may be extended or required to be extended) without the written consent of the Company except in the event that Danisco validly terminates this Agreement is terminated pursuant to Section 8.1.
(e) Subject to the prior satisfaction of the Majority of the Minority Condition and the satisfaction or waiver by Danisco or the Buyer of the Minimum Condition and the other conditions to the Offer set forth in Annex I, the Buyer shall consummate the Offer in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the its terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, for all shares of Common Stock tendered pursuant to the Offer as promptly soon as practicable after the Buyer is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer, all Shares Offer (i) validly and the first date upon which the Buyer may accept for payment shares of Common Stock tendered and not withdrawn pursuant to the Offer Offer) shall be 20 business days (the time at which Shares are first accepted for payment calculated in accordance with Rule 14d-1(g) under the Offer, Exchange Act) following the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer.
(f) As soon as practicable on the date the Offer is commenced, Parent (i) Danisco and Merger Subsidiary the Buyer shall file with the SEC Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that ), and a Schedule 13E-3 (together with all amendments, supplements and exhibits thereto, the “Buyer Schedule 13E-3”). The Schedule TO shall include the summary term sheet required thereby under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (the Schedule TO, Buyer Schedule 13E-3, Offer to Purchase and other appropriate ancillary Offer documents (collectivelyform of letter of transmittal and summary advertisement referred to above, together with any amendments or and supplements thereto, being referred to collectively in this Agreement as the “Offer Documents”), . Danisco and shall the Buyer agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to all holders of Shares. The Company shall promptly upon request of Parent Common Stock, in each case as and Merger Subsidiary provide Parent in writing with all information concerning to the Company that is extent required to be included in the Schedule TO or the Offer Documentsby applicable laws and regulations. Each of Parent, Merger Subsidiary Danisco and the Company agrees Buyer, on the one hand, and the Company, on the other hand, agree to 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 required by law. Danisco and the Buyer further agree to be) false or misleading in any material respect. Parent and Merger Subsidiary shall take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of SharesCommon Stock, in each case, case as and to the extent required by applicable U.S. federal securities lawslaws and regulations. The Company and its counsel (and the Special Committee and its counsel) shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent Danisco and Merger Subsidiary the Buyer shall give reasonable and good faith due consideration to any comments made all reasonable additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that or the Company Special Committee and its counsel shall provide any comments thereon as soon as reasonably practicablecounsel). Parent In addition, Danisco and Merger Subsidiary shall the Buyer agree to provide the Company and its counsel (and the Special Committee and its counsel) in writing with (i) any comments or other communicationscomments, whether written or oral, that ParentDanisco, Merger Subsidiary the Buyer or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Danisco’s or the Buyer’s, as the case may be, receipt of those comments such comments, and any written or other communications oral responses thereto. The Company and its counsel (iiand the Special Committee and its counsel) shall be given a reasonable advance opportunity to participate in review any such written responses and Danisco and the response of Parent and Merger Subsidiary Buyer shall give due consideration to those comments and to provide comments on that response (to which all reasonable and good faith consideration shall be givenadditions, it being understood that deletions or changes suggested thereto by the Company and its counsel shall provide any comments thereon as soon as reasonably practicable(and the Special Committee and its counsel).
(g) If the Offer is terminated by the Buyer, or this Agreement is terminated prior to the purchase of shares of Common Stock in the Offer, Danisco and the Buyer shall promptly return, and shall cause any depository or paying agent acting on behalf of Danisco or the Buyer, to return promptly all tendered shares of Common Stock to the registered holders thereof.
(h) 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 Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the date hereof and prior to the Buyer’s acceptance for payment of, and payment for, shares pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not --------- have been terminated in accordance with Section 9.01 hereof and none of the ------------ events set forth in clause (a) through (i) of Annex A hereto shall have occurred and ------- or be continuing thatcontinuing, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under 14d-2(a) of the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the ------------ Offer as promptly as reasonably practicable after the date hereof, but in no event later than 10 business days after the initial public announcement of Purchaser's intention to purchase any and all of commence the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "Minimum Condition") that there at least the number of Shares that ----------------- shall be constitute fifty-one percent (51%) of the then outstanding Shares on a Fully Diluted Basis shall have been validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority expiration of the total number Offer and also shall be subject to the satisfaction of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to each of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly ------- reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without the Company's prior written consent of the Company-------- ------- consent, (i) Purchaser shall not waive the Minimum Condition may not be waived and (ii) no change may be made that (i) which decreases the price per Share payable in the Offer, or (ii) which reduces the maximum number of Shares to be purchased in the Offer, or (iii) which changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, or (iv) which imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex IA ------- hereto, or amends any other term of the Offer in any manner adverse to the holders of Shares (v) which, except as provided by Law or in the reasonable judgment of following sentence, extends the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Offer. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (xi) Merger Subsidiary extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC"), or the --- staff thereof thereof, applicable to the Offer, or (iii) extend (or re-extend) the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or any period required by Applicable Law (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but there shall not have been validly tendered and (y) if any condition not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company's stockholders in accordance with Delaware Law . In addition, if, on the then applicable expiration date of the Offer, the sole condition remaining unsatisfied is not the failure of the waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act") ------- or under any applicable material non-United States statutes or regulations to have expired or been terminated, then Purchaser shall extend the Offer from time to time until the earlier to occur of (i) February 15, 2001 and (ii) the fifth business day after the expiration or termination of the applicable waiting period under the HSR Act or any applicable material non-United States statutes or regulation. Parent and Purchaser further agree that in the event of the failure of one or more of the conditions to the Offer to be either satisfied or waived on any scheduled Expiration Datedate on which the Offer would have otherwise expired, Merger Subsidiary Purchaser shall, subject if such condition or conditions could reasonably be satisfied by February 15, 2001 and for so long as such condition or conditions continue to the rights of the parties in Article 11reasonably be expected to be satisfied by February 15, 2001, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such condition or conditions are shall have been satisfied or waived; provided, in each casehowever, that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn -------- ------- pursuant to the Offerthis sentence beyond February 15, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares2001. The Per Share Amount shall, Merger Subsidiary maysubject to applicable withholding of taxes, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject be net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent . Purchaser shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept pay for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer (Offer. Notwithstanding the time at which Shares are first accepted for payment under immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the “Acceptance Time”right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to the Per Share Amount in cash (the "Merger ------ Consideration") is to be made to a person other than the person in whose name ------------- the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and (ii) validly tendered in that the Subsequent Offering Periodperson requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file 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") with respect to the Offer. The Schedule TO shall contain or shall -- incorporate by reference an offer to purchase (the "Offer to Purchase") and ----------------- forms of the related letter of transmittal and any related summary advertisement (the Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly agree to correct --------------- promptly any information provided by it any of them 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. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 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 holders 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 on the Schedule TO and upon the Offer Documents each time before any such document is filed with the SEC, (and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)) prior to the filing thereof with the SEC or dissemination to stockholders of the Company. In addition, Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel in writing with (i) any comments Parent or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide with copies of any comments thereon as soon as reasonably practicable)written responses by Parent or Purchaser or their counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing thatSubject to the provisions of this Agreement, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) Sub, no later than November 8, 2001, to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer Offer, at a price of $15.25 per share, net to purchase any and all of the outstanding Shares seller in cash, without interest (or at such higher price as Sub in its sole discretion elects to offer) (the "Offer Price"), but subject to any withholding required by law. The Offer obligation of Parent and Sub to accept and pay for Shares tendered shall be subject only (1) to the condition that there shall be validly tendered prior to the expiration date of the Offer and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares thatwhich, together with when added to the shares of Company Common Stock owned by Parent, represent at least 90.1% of the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares issued and outstanding on a fully diluted basis, calculated basis (including for purposes of such calculation all shares of Company Common Stock issuable upon exercise of all Company Options (as defined in accordance with Section 3.5(b2.6) that vest (or upon consummation of the Offer will vest) (but excluding shares of Company Common Stock that are issuable upon the exercise of Company Options that are cancelled pursuant to Section 2.6(a) hereof or upon the exercise of Company Warrants that are cancelled pursuant to Section 2.7 hereof) and the exercise of all outstanding Company Warrants (as defined in Section 2.7)) (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. Merger Subsidiary I (collectively, the "Offer Conditions"). Parent and Sub expressly reserves reserve the right to waive any of the conditions Offer Conditions (except that Parent and Sub may not waive the Minimum Condition except with the consent of the Company or as and to the extent provided in this Agreement), to increase the price per share payable in the Offer and to make any other change or changes in the terms or conditions of or the Offer, including without limitation extending the expiration date, except that, without the consent of the Company, Parent and Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement) in a manner adverse to the holders of the Company Common Stock, (iv) except as provided in Section 1.1(b), extend the Offer; , (v) change the form of consideration payable in the Offer, or (vi) amend any other term of the Offer in a manner adverse to the Company Shareholders.
(b) Subject to the terms and conditions hereof, the Offer shall expire at midnight, San Francisco time, on the date twenty business days (as defined under the Exchange Act) after the date the Offer is commenced, provided, that Sub may, without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in extend the Offer, imposes conditions to if at the Offer in addition to those set forth in Annex I scheduled or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial extended expiration date of the Offer shall be the twentieth (20th) business day after commencement any of the Offer (determined Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, subject in accordance with Rule 14d-1(g)(3) under each case to any right of Parent, Sub or the Exchange Act) (such date, or such subsequent date Company to which the expiration of the Offer is extended terminate this Agreement pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, hereof or (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at any scheduled expiration date of the Offer, the conditions set forth in paragraph 5(g) of Annex I are satisfied, but any of the conditions set forth in paragraphs 2 or 5(a), (b), (c), (d), (e) or (f) of Annex I are not satisfied, then at the request of the Company, Sub shall extend the Offer from time to time, subject to any right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof.
(c) Notwithstanding any period required by Applicable Law other provision contained herein, in the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer, at the request of the Company, subject to any right of Parent or Sub to terminate this Agreement pursuant to the terms hereof, Sub shall, and Parent shall cause Sub to, take any of the actions set forth in the following clauses (x), (y) if or (z) (provided that Sub shall have complete discretion as to which actions among the three clauses to take) as follows: (x) extend the Offer pursuant to Section 1.1(b), (y) amend the Offer in contemplation of the exercise of the Option Agreement (to the extent the Option Agreement is exercisable at such time) to reduce the Minimum Condition to that number of shares (the "Option Exercise Minimum Number") equal to the number of shares which, when combined with the number of shares issued upon exercise of the Option Agreement, equals 90.1% of the shares of Company Common Stock on a fully diluted basis (but excluding shares of Company Common Stock that are issuable upon the exercise of Company Options that are cancelled pursuant to Section 2.6(a) hereof or upon the exercise of Company Warrants that are cancelled pursuant to Section 2.7 hereof) or (z) amend the Offer to provide that, in the event (i) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (after giving effect to the issuance of any condition shares of Company Common Stock theretofore acquired by Parent or Sub) and (ii) the number of shares of Company Common Stock tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is not satisfied or waived on any scheduled Expiration Datemore than 50% of the then outstanding shares of Company Common Stock, Merger Subsidiary shallSub shall waive the Minimum Condition and amend the Offer to reduce the number of shares of Company Common Stock subject to the Offer to 49.9% of the shares of Company Common Stock then outstanding (the "Revised Minimum Number") and, subject to the rights prior satisfaction or waiver of the parties other conditions of the Offer, purchase, on a pro rata basis, the Revised Minimum Number of shares (it being understood that Sub shall not in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to any event be required to satisfy such conditions but in accept for payment, or pay for, any event not in excess shares of twenty (20) business days each) until such conditions Company Common Stock if less than the Revised Minimum Number of shares are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required tendered pursuant to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to at the Offerexpiration date).
(d) Sub shall, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, Merger Subsidiary shallaccept for payment shares of Company Common Stock validly tendered as soon as practicable (and in any event within five business days) after such satisfaction or waiver of all conditions of the Offer, and pay for accepted shares of Company Common Stock as promptly thereafter as reasonably practicable, and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide, or cause it to (including by providing or causing to be provided to Merger Subsidiary Sub on a timely basis the funds necessary funds), to pay for any shares of Company Common Stock Sub accepts or becomes obligated to accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodpayment.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Merger Agreement (Odwalla Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had Subject to compliance with the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the four conditions set forth in Annex Ilisted below, as promptly as practicable after practicable, but in no event later than Tuesday, April 4, 2000, or, if later, as soon as each of the date hereof and in any event within ten (10) Business Days after the date hereoffour conditions listed below has been satisfied, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer for ------------ any and all of the Shares at the Offer Price, which Offer shall be subject to the conditions set forth in Annex A (as defined below):
(i) This Agreement shall not have been terminated in accordance with Article VIII;
(ii) Each member of the Board of Directors of the Company on and as of the date hereof shall have entered into a binding agreement with Parent and Merger Sub obligating him or her (x) to tender all shares held by him or her into the Offer unless the Board determines not to recommend the Offer pursuant to Section 1.2(b) or Section 6.2(b), and (y) to appoint new members to and to resign from the Board of Directors to the extent required in order to allow the Company to comply with Section 1.3(a);
(iii) The employment agreement between the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the amendment to the employment agreement between the Company and H. ▇▇▇▇ ▇▇▇▇▇, substantially in the form previously conveyed by Parent to the Company (together, the "Employment Agreements"), shall have been executed and remain in effect; and
(iv) the Offer The Company shall be prepared to purchase any comply with Sections 1.2(b) and all of the outstanding Shares at the Offer Price6.3(c). The Offer parties agree such public announcement shall occur promptly after the execution and delivery of this Agreement. The obligation of Merger Sub to accept for payment and to pay for any Shares tendered shall be subject only to (1i) to the condition that there shall more than a majority of the issued and outstanding Shares be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “"Minimum Condition”"), and (2ii) to the other ----------------- conditions set forth in Annex I. A hereto ("Annex A"). Merger Subsidiary Sub expressly ------- reserves the right to waive any of the conditions to increase the Offer and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided, that without however, that, unless previously approved by the prior written consent Board of Directors of the Company (the "Company's --------- Board") in writing, (i) the Minimum Condition may not be waived and (ii) no change may be made that which (i) decreases the Offer Price, ----- (ii) changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex I or modifies A, (v) amends the conditions set forth in Annex IA to broaden the scope of such conditions, or (vi) amends any other term of the Offer in any a manner adverse to the holders of Shares the Shares, (vii) extends the Offer except as provided in Section 1.1(b), or (viii) amends the reasonable judgment Minimum Condition. It is agreed that the conditions set forth in Annex A, other than the Minimum Condition, are for the sole benefit of Parent and Merger Sub and may be waived by Parent or Merger Sub, in whole or in part at any time and from time to time in its sole discretion; the Minimum Condition may only be waived by Parent with the prior written approval of the Company's Board. The failure by Parent 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 Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 9.2) will be tendered in the Offer.
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) Business Days after the date the Offer is commenced (the initial "Expiration Date", and any --------------- expiration time and date established pursuant to an authorized extension of the Offer shall be as so extended, also an "Expiration Date"); provided, however, that --------------- without the twentieth consent of the Company's Board, Merger Sub may (20thi) business day from time to time extend the Offer (each such individual extension not to exceed five (5) Business Days after commencement the previously scheduled Expiration Date), if at the scheduled Expiration Date of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration any of the conditions to the Offer is extended pursuant to and in accordance with the terms of this Agreementshall not have been satisfied or waived, the “Expiration Date”). Notwithstanding the foregoing, until such time as such conditions are satisfied or waived; (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (iii) --- extend the Offer or any for a subsequent offering period required by Applicable Law (as provided in Rule 14d-11 under the Exchange Act) of up to twenty (20) Business Days in order to acquire over 90% of the outstanding Shares, provided that no such extension for a subsequent offering period shall occur unless Merger Sub has purchased Shares in number fulfilling the Minimum Condition and (y) all additional shares tendered through the period of the last Expiration Date. Merger Sub agrees that if any condition of the conditions to the Offer is set forth on Annex A other than the last two conditions thereon (conditions (a) and (b) on page A-2 of this Agreement) are not satisfied or waived on any scheduled Expiration Date, then if all such conditions are reasonably capable of being satisfied prior to May 31, 2000, Merger Subsidiary shall, subject to the rights of the parties in Article 11, Sub shall extend the Offer for one or more periods from time to time (each in such individual extension not to exceed ten (10) Business Days after the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days eachpreviously scheduled Expiration Date) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary Sub shall not be required to extend the Offer beyond beyond, and without the termination approval of the Company's Board the Offer will not be extended beyond, May 31, 2000. Subject to the terms and conditions of the Offer and this Agreement. If upon the acceptance , Merger Sub shall accept for payment ofpayment, and payment pay for, all Shares validly tendered and not withdrawn pursuant to the Offer, Offer that Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior Sub becomes obligated to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay forfor 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 (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “"Schedule TO”") with respect to the Offer. The Schedule TO shall contain as an ----------- exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Merger Sub agree that shall include the summary term sheet required thereby and, as exhibitsSchedule TO, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any all amendments or supplements thereto, thereto (which together constitute the “"Offer ----- Documents") shall comply in all material respects with the Exchange Act and the --------- rules and regulations thereunder and other applicable Laws (as defined in Section 5.1(i)). Parent and Merger Sub further agree that the Offer Documents”), and on the date first published, sent or given to the Company's stockholders, shall cause 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 by the Company or any of its stockholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the written information provided by the Company for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is state any material fact required to be included stated therein or necessary in order to make the Schedule TO or statements therein, in light of the Offer Documentscircumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary shall Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, 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 on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and . Merger Subsidiary shall give reasonable and good faith consideration Sub agrees to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments (in writing if such comments are received orally or other communications, whether a copy of any written comments) Merger Sub or oral, that Parent, Merger Subsidiary or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have previously been terminated in accordance with Section 7.1, none of the events or conditions in clause (d) of Annex 1 (except for those events or conditions which cannot, by their terms, occur until the Acceptance Time) shall have occurred and be continuing thatcontinuing, had the Offer been commenced, would give rise Company has fulfilled its obligation to a right provide information to terminate Parent and the Offer Purchaser pursuant to any of Section 1.1(h) and the conditions set forth Company is prepared (in Annex Iaccordance with Section 1.2(b)), to file the Schedule 14D-9 with the Securities and Exchange Commission (the SEC) on the same date as promptly as practicable after the date hereof Purchaser commences the Offer, the Purchaser shall, and in any event Parent shall cause the Purchaser to, within ten (10) 10 Business Days after the date hereofof the initial public announcement of this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Exchange Act, the Offer. The obligation of the Purchaser to accept for payment or pay for any shares validly tendered in the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer not properly withdrawn shall be subject only to:
(1i) to the condition that there shall be being validly tendered in the Offer and not properly withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a that number of Shares thatwhich, together with the Shares number of Shares, if any, then owned of record, directly or indirectly, by Parent and/or Merger Subsidiaryor the Purchaser, represents at least a majority of the total number of Shares then outstanding (determined on a fully diluted basisFully Diluted Basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a Fully Diluted Basis) and entitled to vote upon the adoption of this Agreement on the date Shares are accepted for payment (collectively, calculated the Minimum Condition); and
(ii) the satisfaction, or waiver by Parent or the Purchaser in their sole discretion, of the other conditions and requirements set forth in Annex 1.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or the Purchaser in their sole discretion, of the other conditions and requirements set forth in Annex 1, the Purchaser shall, and Parent shall cause the Purchaser to, accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Purchaser is legally permitted to do so under applicable Law (the date and time of acceptance for payment of such Shares, the Acceptance Time). Parent shall provide or cause to be provided to the Purchaser on a timely basis funds sufficient to purchase and pay for any and all Shares that the Purchaser becomes obligated to accept for payment and purchase pursuant to the Offer. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 3.5(b2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition”), Condition and (2) to the other conditions and requirements set forth in Annex I. Merger Subsidiary 1. Parent and the Purchaser expressly reserves reserve the right to increase the Offer Price, waive any of the conditions condition to the Offer and (except the Minimum Condition) or to make any change other changes in the terms and conditions of or conditions to the Offer; provided, however, that without unless otherwise contemplated by this Agreement or as previously approved by the prior written consent of Company in writing, the Company, Purchaser shall not (i) decrease the Minimum Condition may not be waived and Offer Price, (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, imposes (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify any of the other conditions and requirements to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any a manner materially adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of Shares, (vi) impose additional conditions to the Offer shall be or (vii) extend the twentieth (20th) business day after commencement of the Offer (determined Expiration Date other than in accordance with Rule 14d-1(g)(3this Agreement.
(d) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the “Offer shall expire at 11:59 p.m. (Eastern time) on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the Offer (the Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date on which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with this Agreement, the Expiration Date). .
(e) Notwithstanding anything in this Agreement to the foregoingcontrary, the Purchaser shall be permitted and required to extend the Offer from time to time only as follows (xand the Purchaser and Parent shall not extend the Offer for any other reason without the prior written consent of the Company) Merger Subsidiary (i) if on any then-scheduled Expiration Date any of the conditions to the Offer (including the Minimum Condition or the other conditions and requirements set forth in Annex 1) have not been satisfied or, to the extent permitted, waived by Parent or the Purchaser (except, for the avoidance of doubt, the Minimum Condition, which may not be waived), then the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for successive periods of up to 20 Business Days (and in increments of at least five Business Days) in order to permit the satisfaction of such condition or conditions or, to the extent permitted, the waiver of such condition or conditions, and (ii) the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law Offer. Parent and (y) if any condition the Purchaser agree that, to the Offer is not satisfied or waived on extent requested in writing by the Company prior to any then-scheduled Expiration Date, Merger Subsidiary shallthe Purchaser shall (and Parent shall cause the Purchaser to) if the Antitrust Condition has not been satisfied or the CFIUS Approval has not been obtained on such then-scheduled Expiration Date (and have not been waived by the Purchaser), subject and provided that it is reasonably expected that the Antitrust Condition will be satisfied and/or the CFIUS Approval will be obtained, as applicable, on or prior to the rights of the parties in Article 11Outside Date, extend the Offer for on one or more periods (each occasions, in the reasonable judgment consecutive increments of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary up to be required to satisfy such conditions but in any event not in excess of twenty (20) business days 10 Business Days and at least five Business Days each) , until such conditions are time as the Antitrust Condition shall have been satisfied or waived; providedand/or the CFIUS Approval has been obtained, in each caseas applicable.
(f) Following the Acceptance Time, that Merger Subsidiary shall not be required if necessary to extend obtain sufficient Shares to reach the Offer beyond the termination of this Agreement. If Short Form Threshold (without regard to Shares issuable upon the acceptance for payment of, and payment for, all exercise of the Top-Up Option or Shares validly tendered and not withdrawn pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide for a “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 of under the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofExchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary the Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)Purchaser to, immediately accept for payment payment, and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) that are validly tendered and not withdrawn pursuant to the Offer during such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the time at which Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall, and Parent shall cause the Purchaser to terminate the Offer promptly and in any event shall not acquire any Shares are first accepted for payment under pursuant thereto. If the Offer is terminated by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the “Acceptance Time”) Purchaser shall promptly return, and (ii) validly shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Subsequent Offering PeriodOffer to the registered holders thereof.
(bh) On the date of the commencement of the Offer, Parent and Merger Subsidiary the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that ). The Schedule TO shall include the summary term sheet required thereby andinclude, as exhibits, : the Offer to Purchase and Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement and other appropriate ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent all information concerning the Company that may be reasonably requested by Parent in connection with any action contemplated by this Section 1.1(h). Parent and shall the Purchaser agree to cause the Offer Documents to be disseminated to all holders of Shares, as and to the extent required by the Exchange Act, the SEC or its staff, The New York Stock Exchange (the NYSE), French regulations or the French Autorité des Marchés Financiers (the AMF) or its staff. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees promptly Company, on the other hand, agree to correct promptly any information provided by it such party for use in the Schedule TO or the Offer Documents 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. respect or as otherwise required by applicable Law, and Parent and Merger Subsidiary shall the Purchaser agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. No representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary the Purchaser shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)counsel. In addition, Parent and Merger Subsidiary the Purchaser shall promptly provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments such comments, and any written 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, it being understood that the oral responses thereto. The Company and its counsel shall provide be given a reasonable opportunity to review and comment upon any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In the event that Parent or Purchaser receives any comments thereon from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and to use its reasonable best efforts to take such other actions as soon as may be reasonably practicable)necessary to resolve the issues raised therein.
(i) The Offer Price shall be automatically adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by the Purchaser for the Shares.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex I hereto (the “Tender Offer Conditions”) shall have occurred and be continuing thatcontinuing, had on April 4, 2007 (or such other day as the Offer been commencedparties shall agree in writing), would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary tothe Purchaser (and the Seller shall cooperate with the Parent and the Purchaser) to commence (within the meaning of Rule 14d-2 under of the ▇▇▇▇ ▇▇▇Exchange Act) the Offer an offer to purchase any and all outstanding shares of the outstanding Shares Seller Common Stock at the Offer Price. The Offer Price and shall be use its reasonable best efforts to consummate the Offer, subject only (1) to the condition that there terms and conditions hereof and thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, the Purchaser shall, and the Parent shall be cause it to, promptly after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding Tax), all shares of Seller Common Stock validly tendered pursuant to the Offer and not withdrawn (the time and date of acceptance for payment, the “Acceptance Date”). Table of Contents
(b) The Purchaser expressly reserves the right, in accordance with its sole discretion, to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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, however, that without the prior written consent of the CompanySeller, (i) the Minimum Condition may Purchaser shall not be waived and (ii) no decrease the Offer Price or change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, imposes waive or amend the Minimum Condition (as defined in Annex I hereto), decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends amend any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment shares of the CompanySeller Common Stock. The initial expiration date of the Offer shall be remain open until 12:00 midnight, New York time, on the twentieth date that is twenty-five (20th25) business day Business Days after the commencement of the Offer (determined in accordance with pursuant to Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, (the “Expiration Date”). Notwithstanding , unless the foregoing, (x) Merger Subsidiary Purchaser shall extend have extended the Offer period of time 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 and (y) if any condition to which the Offer is not satisfied open pursuant to, and in accordance with, the succeeding sentence or waived on any scheduled as may be required by applicable Laws or interpretations or positions of the Securities and Exchange Commission or its staff (the “SEC”), in which event the term “Expiration Date” shall mean the latest time and date as the Offer, Merger Subsidiary shallas so extended, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waivedmay expire; provided, in each casehowever, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) after the Expiration Date, in accordance with Rule 14d-11 of under the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration DateExchange Act. Merger Subsidiary shall not terminate or withdraw the Offer prior to its If on any then scheduled Expiration Date, unless any of the Tender Offer Conditions is not satisfied or waived by the Purchaser, the Purchaser may extend the Offer from time to time; provided, however, that, on such Expiration Date, (i) if the waiting period under the HSR Act or under any applicable foreign statutes or regulations applicable to the Offer or the Merger shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations or (ii) if any of the Tender Offer Conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, the Purchaser shall extend the Offer from time to time in consecutive increments of up to five (5) Business Days each until the time such condition or conditions shall no longer exist or any of the matters described in such paragraphs (a) or (b) shall have become final and non-appealable; provided, further, however that the Purchaser shall not be required to extend the Offer beyond the Outside Date (defined in Section 9.1(b) below). Nothing contained in this Agreement is terminated paragraph shall affect any termination rights in accordance with Article 11 hereofIX. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer and this Agreement and the satisfaction of all the Tender Offer Conditions as of the Expiration Date, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), Purchaser will accept for payment and pay for, as promptly as practicable after the expiration for all shares of the Offer, all Shares (i) Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer (promptly after the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement Expiration Date of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Merger Agreement (Xerox Corp)
The Offer. (a) Provided that nothing none of the events set forth in Annex A hereto shall have occurred and or be continuing that(other than the requirements set forth in clauses (i)-(iv) of Annex A), had Purchaser shall commence the Offer been commencedas promptly as reasonably practicable after the date hereof, would give rise but in no event later than 5 business days after the initial public announcement of Purchaser's intention to a right commence the Offer. The obligation of Purchaser to terminate accept for payment Shares tendered pursuant to the Offer pursuant shall be subject to any the satisfaction of each of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceA hereto. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; providedPROVIDED, HOWEVER, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, which decreases the price per Share payable in the Offer Price or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex I or modifies A; and PROVIDED FURTHER that the conditions set forth condition in clause (iv) of Annex I, or amends A may not be waived by Purchaser nor may any other term of change be made to such condition without the Offer in any manner adverse to the holders of Shares in the reasonable judgment consent of the Company. The initial 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 Section 1.01(a)), then upon the applicable expiration date of the Offer Offer, Purchaser shall be the twentieth (20th) business day after commencement of the Offer (determined provide "subsequent offering periods," as such term is defined in, and in accordance with with, Rule 14d-1(g)(3) 14d-11 under the Exchange Act) (such date, or such subsequent date for an aggregate period not to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of exceed twenty (20) business days each(for all such extensions) until and Purchaser shall (A) give the required notice of such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period and (“Subsequent Offering Period”B) in accordance with Rule 14d-11 immediately accept and promptly pay for all Shares tendered as of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofsuch applicable expiration date. Subject to the foregoingterms of the Offer, including Purchaser shall accept for payment and pay for all Shares at the requirements earliest time at which it is permitted to do so under applicable law. Purchaser shall take all necessary action to cause all shares of Rule 14d-11Class B Common Stock so accepted to be converted to shares of Class A Common Stock as promptly as practicable on the date such shares are accepted by Purchaser or on any subsequent date prior to the Effective Time if, and only if, such conversion would permit Purchaser to acquire shares of Class A Common Stock representing at least 90% of the then outstanding Class A Common Stock.
(b) The Per Share Amount shall, subject to applicable withholding of Taxes (as hereinafter defined), be net to the seller in cash, upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent . Purchaser shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept pay for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer (Offer. Notwithstanding the time at which Shares are first accepted for payment under immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the “Acceptance Time”right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (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 (ii) validly tendered in that the Subsequent Offering Periodperson requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(bc) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file 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") with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and such other appropriate ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly agree to correct promptly any information provided by it any of them 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. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 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 holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities lawslaws to give effect to the Offer. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is filed and all amendments and supplements thereto prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex II hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five business days following the public announcement of the terms of this Agreement, commence an offer (and Parent shall cause Merger Subsidiary tothe "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares shares of common stock, par value $.01 per share (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company at a price of $30.50 per Share (including such associated Rights), net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below), expiration date of the Offer and not withdrawn a number of Shares thatwhich, together with the Shares then owned by Parent and/or and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding on a fully diluted basis, calculated in accordance with Section 3.5(bShares being hereinafter referred to as the "Fully Diluted Shares") (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. I hereto. Parent and Merger Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to of the Offer; providedprovided that, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I I, changes or modifies waives the conditions Minimum Condition, extends the Offer (except as set forth in the following sentence), or makes any other change to any condition to the Offer set forth in Annex I, or amends any other term of the Offer in any manner I which is adverse to the holders of Shares in Shares. Subject to the reasonable judgment of the Company. The initial expiration date terms of the Offer shall be in this Agreement and the twentieth satisfaction (20thor waiver to the extent permitted by this Agreement) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under conditions to the Exchange Act) (such dateOffer, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; provided that Merger Subsidiary has may extend the Offer if, at the scheduled expiration date of the Offer or any extension thereof any of the conditions to the Offer shall not acquired the Requisite Short Form Merger Shareshave been satisfied, until such time as such conditions are satisfied or waived, and Merger Subsidiary maymay extend the Offer for a further period of time of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, prior to the expiration date of the Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Fully Diluted Shares. Subject to Section 9.1, if the condition set forth in clause (ii) of the first paragraph of Annex I is not satisfied as of the date the Offer would otherwise have expired, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis extend the necessary funds), accept for payment and pay for, as promptly as practicable after Offer until the expiration earlier of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (date that is 30 days after the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) scheduled expiration date and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent condition set forth in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and clause (ii) a reasonable opportunity to participate in of 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).first paragraph
Appears in 1 contract
Sources: Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex IANNEX I hereto, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (shall, and Parent shall cause Merger Subsidiary to) commence (within , amend the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Initial Offer to offer to purchase any and all of the outstanding Shares at a price of $8.50 per Share, net to the Offer Priceseller in cash (the "OFFER"). The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then beneficially owned by Parent and/or Parent, Merger SubsidiarySubsidiary and Saint-Gobain, represents at least a majority of the total number of outstanding Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(bbasis (including the exercise of all outstanding options) (the “Minimum Condition”), "MINIMUM CONDITION") and (2) to the other conditions set forth in Annex I. 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 of the Offer; provided, that provided that, no change or waiver may be made that, without the prior written consent of the Company, (i) waives the Minimum Condition may not be waived and (ii) no change may be made that Condition, changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). ANNEX I. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend without the Offer for any period required by any rule, regulation, interpretation or position consent of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration DateCompany, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).Subsidiary
Appears in 1 contract
The Offer. (aA) Provided An “Offer” for the purposes of this Schedule is an offer to surrender this Lease to the Landlord free from encumbrances (other than any subject to which this Lease was granted) and which:
(i) is unconditional;
(ii) is made irrevocably by the Tenant unless and until rejected or treated as rejected by the Landlord pursuant to paragraph 6.3(C) of this Part I of this Schedule;
(iii) is made in the form set out in Part II of this Schedule;
(iv) is submitted by the Tenant to the Landlord in duplicate, both parts of which are signed by the Tenant;
(v) specifies the Consideration; and
(vi) specifies whether any tenant’s fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or deemed receipt) of an Offer, the Landlord shall be entitled (but not obliged) to give notice in writing to the Tenant stating either:
(i) that nothing shall have occurred and be continuing that, had it does not wish to accept the Offer been commenced, would give rise in which event the provisions of paragraph 6.3(C) will apply; or
(ii) that it is minded to a right to terminate accept the Offer pursuant at the Consideration, subject to any compliance with section 38A(4) of the conditions set forth in Annex I, as promptly as practicable after the date hereof Landlord and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇▇▇ ▇▇▇ ▇) ▇▇▇ in which event subject to compliance by the Landlord and the Tenant with paragraph 6.4 the Landlord will accept the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with paragraph 6.5 within 5 (five) Business Days of compliance by the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together Tenant with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority provisions of paragraph 6.4(B);
(C) In the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, event (i) the Minimum Condition may not be waived and Landlord declines to accept the Offer pursuant to paragraph 6.3(B)(i) or (ii) no change at the expiry of the 25 Business Days’ period specified in paragraph 6.3(B) the Landlord has not notified the Tenant that it is minded (subject to compliance with Section 38A(4) of the Landlord and Tenant Act 1954) to accept a surrender of this Lease and the Offer is thereby treated as rejected by the Landlord or (iii) the Landlord has not within 20 Business Days after notifying the Tenant pursuant to paragraph 6.3(B)(ii) that it is minded to accept the Offer then complied with the provisions of Section 38A(4) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and paragraph 6.4(A) and following compliance by the Tenant with paragraph 6.4(B) accepted the Offer pursuant to paragraph 6.5, the Tenant may assign or underlet this Lease to a third party tor a consideration determined by the Tenant, provided that:
(i) the Tenant must comply with the provisions of paragraph 3.20 (other than paragraph 3.20(E)) of Schedule 3;
(ii) the Tenant shall keep the Landlord fully informed of its negotiations with third parties in respect of any proposed assignment or underletting, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may be made that changes redacted by the form of consideration Tenant if the Tenant reasonably considers it to be paidnecessary, decreases save that the Offer Price key terms including the consideration must be disclosed to the Landlord);
(iii) the third party transaction must be bona fide and on arm’s length terms; and
(iv) if the proposed assignment or underlease to a third party would be for less than the number of Shares sought Consideration specified in the Offer, imposes conditions the Tenant must first offer to surrender this Lease to the Offer in addition to those set forth in Annex I Landlord for the price which has been agreed with the proposed assignee or modifies undertenant (the conditions set forth in Annex I“Revised Offer’’) and the Landlord shall be entitled but not obliged within 10 Business Days of receipt (or deemed receipt), or amends any other term time being of the essence, of the Revised Offer in any manner adverse to decline the Revised Offer or to notify the Tenant that it is minded to accept the Revised Offer subject to compliance with Section 38A(4) of the Landlord and Tenant ▇▇▇ ▇▇▇▇. In the event that the Landlord fails to respond to the holders Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Landlord. The Revised Offer shall comply in all respects with the provisions of Shares paragraph 6.3(A) subject to any necessary revisions to the form set out in Part II of this Schedule and the reasonable judgment Consideration for the purposes of the Company. The initial expiration date of the Revised Offer shall be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to consideration for which the expiration Tenant is intending to dispose of the Offer is extended pursuant to this Lease whether monetary or not monetary and in accordance with the terms of this Agreementparagraph (C) apply to the Revised Offer as if it were an Offer, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position save in respect of the SEC or time in which the staff thereof applicable Landlord must notify the Tenant of whether it intends to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodaccept.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
Sources: Lease Agreement (Indivior PLC)
The Offer. (a) Provided that nothing (i) none of the events or circumstances set forth in paragraphs (a) through (f) of Annex A hereto shall have occurred and be continuing that, had existing (and shall not have been waived by Parent) and (ii) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date Company shall have complied with its obligations under Section 1.2 hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer as promptly as reasonably practicable after the Execution Date, but in no event later than 10 business days after the Execution Date.
(b) The obligation of Parent to purchase any accept for exchange, and all of the outstanding Shares at to exchange the Offer Price. The Consideration for, Public Shares tendered pursuant to the Offer shall be subject only (1i) to the satisfaction of the condition that at the expiration of the Offer there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date Offer (as defined below), a other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not withdrawn that number of Public Shares that, together with which represents more than 50% of the Public Shares then owned by Parent and/or Merger Subsidiaryoutstanding, represents at least a majority of subject to Section 1.1(g) hereof the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “"Minimum Condition”"), and (2ii) to the satisfaction (or waiver by Parent) of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Parent expressly reserves the right to waive any of such conditions (other than the conditions Minimum Condition and the condition set forth in clause (vi) of the second paragraph of Annex A hereto), to increase the consideration per Public Share payable in the Offer and to make any change other changes in the terms of or conditions to the Offer; provided, however, that no change may be made without the prior written consent of the CompanyCompany which decreases the Exchange Ratio for the Offer from that set forth in the second "Whereas" clause hereof (or decreases the number of shares of Parent Common Stock issuable pursuant to the CSRs), (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paidpaid in the Offer, decreases reduces the Offer Price or the maximum number of Shares sought to be acquired 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 IA hereto, waives the Minimum Condition or the condition set forth in clause (vi) of the second paragraph of Annex A hereto, or modifies or amends any of the conditions set forth in Annex A hereto or makes other term changes in the terms of the Offer that are in any manner adverse to the holders of Public Shares in or, except as provided below, extends the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”)Offer. Notwithstanding the foregoing, Parent may (xA) Merger Subsidiary extend the Offer beyond the initial scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Parent's obligation to accept for exchange, and to exchange the Offer Consideration for, Public 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 Section 7.1, and (B) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. Each extension of the Offer pursuant to clause (A) of the preceding sentence shall not exceed the lesser of ten business days (or such longer period as the Company and Parent may agree in writing in any period required by Applicable Law and (yparticular instance) if any condition or such fewer number of days that Parent reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. In addition, if, at the expiration date of the Offer, all of the conditions to the Offer is not have been satisfied or waived on any scheduled Expiration Date(or, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected extent permitted by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon , waived by Parent) but the acceptance for payment of, and payment for, all number of Public Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger when taken together with Shares, Merger Subsidiary mayif any, then beneficially owned by Parent, constitutes less than 90% of the Shares then outstanding, without the consent of the Company, Parent shall (subject to applicable law) have the right to provide for a "subsequent offering period" (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 business days after Parent's acceptance for exchange of the Public Shares then tendered and not withdrawn pursuant to the Offer, in its sole discretion, provide a which event Parent shall (I) give the required notice of such subsequent offering period and (“Subsequent Offering Period”II) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw accept for exchange, and promptly exchange the Offer prior to its Expiration DateConsideration for, unless this Agreement is terminated in accordance with Article 11 hereof. all Public Shares tendered and not withdrawn as of such expiration date.
(c) Subject to the foregoing, including terms of the requirements Offer and this Agreement and the satisfaction or earlier waiver of Rule 14d-11, and upon the terms and subject to all the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, Offer set forth in Annex A hereto as promptly as practicable after the of any expiration date of the Offer, Parent shall accept for exchange, and exchange the Offer Consideration (subject to any required withholding of taxes) for, all Public Shares (i) validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable law.
(d) Notwithstanding anything to the time at which Shares are first accepted for payment under contrary set forth herein, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests will not entitle the “Acceptance Time”owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) will be entitled to receive an amount in cash (without interest) equal to such holder's proportionate interest in the net proceeds from the sale or sales in the open market by the Exchange Agent (as hereinafter defined), on behalf of such holders, of the aggregated fractional shares of Parent Common Stock issued pursuant to this paragraph. Promptly following the Purchase Date, (i) the Exchange Agent shall determine the total amount of the fractional shares of Parent Common Stock to which all such tendering stockholders would otherwise be entitled, and aggregate the same into whole shares of Parent Common Stock (rounded up to the nearest whole share), (ii) validly tendered Parent shall issue such whole shares of Parent Common Stock to the Exchange Agent, as agent for such tendering stockholders, and (iii) the Exchange Agent shall sell such shares of Parent Common Stock at the then prevailing prices on the New York Stock Exchange through one or more member firms of the New York Stock Exchange (which sales shall be executed in round lots to the Subsequent Offering Periodextent practicable). Until the net proceeds of such sales have been distributed to such tendering stockholders, the Exchange Agent will hold such proceeds in trust for such holders. Promptly after the determination of the amount of cash to be paid to such holders in lieu of any fractional interests in Parent Common Stock, the Exchange Agent shall pay such amounts to such holders (subject to any required withholding of taxes).
(be) On The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered to Parent pursuant to the Offer.
(f) As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “"Schedule TO”") that and (ii) a registration statement on Form S-4 to register, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), the offer and sale of Parent Common Stock pursuant to the Offer and the Merger (together with all amendments, supplements and exhibits thereto, the "Registration Statement"). The Registration Statement shall include a prospectus (the summary term sheet "Prospectus") containing the information required thereby and, under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include or contain as exhibits, the Offer an exhibit an offer to Purchase exchange and a form of the related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectivelycollectively with the Prospectus, and together with any amendments or all amendments, supplements theretoand exhibits thereto and to the Prospectus, the “"Offer Documents”Documents "), and . Parent shall cause the Offer Documents to be disseminated to all the holders of Sharesthe Public Shares as and to the extent required by applicable federal securities laws. The Company Parent, on the one hand, and the Company, on the other hand, shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information it shall be or shall have become (or shall become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary shall cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Public 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 on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to holders of Public Shares. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration agrees to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Parent or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity such comments, 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, it being understood that 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. Following the time the Registration Statement is declared effective, Parent shall provide any comments thereon as soon as reasonably practicable)file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
(g) If none of the Shares held by the securities holder channeling fund established in connection with Second Amended and Restated Joint Plan of Reorganization of Williams Communications Group, Inc. and CG Austria Inc. are validly t▇▇▇▇▇▇▇ in accordance with the terms of the Offer and not withdrawn at the expiration of the Offer, then the Shares in such fund shall be deemed not outstanding for purposes of the Minimum Condition.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 5.1 and no event shall have occurred and no circumstance shall exist which could reasonably be continuing that, had the Offer been commenced, would give rise expected to result in a right failure to terminate the Offer pursuant to satisfy any of the conditions or events set forth in Annex IA hereto (the "Offer Conditions"), as promptly soon as reasonably practicable after the date execution hereof and (but in any no event within ten (10) Business Days later than 15 business days after the date public announcement of the execution hereof) the Purchaser shall, Merger Subsidiary shall (and the Parent shall cause Merger Subsidiary the Purchaser to, commence an offer (the "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the Shares of the Company, at a price of U.S.$13 per Share (the "Per Share Amount"). The obligation of the Purchaser to accept for payment Shares tendered shall be subject to a minimum of not less than 75% of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding calculated on a fully diluted basis, calculated but excluding Shares held by or on behalf of the Purchaser or its affiliates and associates (as defined in accordance with Section 3.5(bthe CBCA)) on the date of the Offer being validly tendered and not withdrawn (the “"Minimum Condition”), ") and (2) to the satisfaction of the other conditions set forth in Annex I. Merger Subsidiary Offer Conditions. The Purchaser expressly reserves the right right, in its sole discretion, to waive or reduce the Minimum Condition and to waive any of other Offer Condition, to increase the conditions Per Share Amount payable pursuant to the Offer and or to make any change other changes in the terms and conditions of or conditions to the Offer; providedOffer (provided that, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which decreases the Per Share Amount payable in the Offer, changes the form of consideration to be paid, decreases payable in the Offer Price or (other than by adding consideration), reduces the maximum number of Shares sought to be purchased in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse Conditions). The Purchaser covenants and agrees that, subject to the holders terms and conditions of Shares in this Agreement and the reasonable judgment of the Company. The initial expiration date of Offer, including the Offer shall be Conditions, unless the twentieth Company otherwise consents in writing, the Purchaser will accept for payment and pay for Shares validly tendered and not properly withdrawn not later than 10 days following the later of (20thx) business the 35th day after the commencement of the Offer and (determined in accordance with Rule 14d-1(g)(3y) under the Exchange Act) (such date, or such subsequent date to which the expiration satisfaction of the Offer is extended pursuant to and in accordance with Conditions which have not been waived by the terms of this AgreementPurchaser, provided that the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall Purchaser may extend the Offer for any period required by any rule, regulation, interpretation or position of time thereafter. It is agreed that the Offer Conditions are for the benefit of the SEC Purchaser and may be asserted by the Purchaser, regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser or the staff thereof applicable Parent not inconsistent with the terms hereof), or may be waived by the Purchaser, in whole or in part at any time and from time to the Offer time, in its sole discretion. The Purchaser may, at any time, transfer or any period required by Applicable Law and (y) if any condition assign to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods corporations directly or indirectly wholly owned by the Parent EXHIBIT 99(a) - - - - - (each in 3 of 56) the reasonable judgment right to purchase all or any portion of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not properly withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary but any such transfer or assignment shall not terminate or withdraw relieve the Purchaser of its obligations under the Offer prior or prejudice the rights of tendering shareholders to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept receive payment for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant accepted for payment. Without limiting the Parent's other obligations under this Agreement, the Parent unconditionally guarantees to the Offer (Company the time at which Shares are first accepted for payment performance by the Purchaser of each of its obligations under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodthis Agreement.
(b) On As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary the Purchaser shall file (i) with the SEC Director appointed under the CBCA (the "Director") and with the Ontario Securities Commission and other provincial and territorial securities commissions or similar authorities in Canada and the stock exchanges in Canada on which the Shares are listed or traded (the "Canadian Securities Authorities") a Tender Offer Statement on Schedule TO with respect to the Offer takeover bid offer and circular (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”"Offer and Circular") that with respect to the Offer which shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of the related letter of transmittal (the "Letter of Transmittal"), and summary advertisement (ii) with the United States Securities and other appropriate ancillary Exchange Commission (the "SEC") a Tender Offer documents Statement on Schedule 14D-1F (collectivelytogether with all amendments and supplements thereto, the "Schedule 14D-1F") which shall contain (included as an exhibit) the Offer and Circular and the Letter of Transmittal (the Offer and Circular, Schedule 14D- 1F, Letter of Transmittal and related documents, together with any supplements or amendments or supplements thereto, are referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary the Purchaser and the Company each 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. The Parent and Merger Subsidiary shall the Purchaser, on the one hand, and the Company, on the other hand, further agree to take all steps necessary to cause the Offer and Circular and Schedule TO 14D-1F as so corrected to be filed with the SEC Director, the Canadian Securities Authorities and the SEC, respectively, and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by (i) all applicable U.S. federal securities laws in each of the provinces and territories of Canada, the respective regulations and rules under such laws and the applicable by-laws and published policy statements of the Canadian Securities Authorities in such provinces (collectively, the "Canadian Securities Laws") and (ii) applicable United States securities laws. The Parent and the Purchaser will comply with the laws of the Province of Quebec relating to the use of the French language in connection with the Offer Documents to be delivered to shareholders of the Company. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the Canadian Securities EXHIBIT 99(a) - - - - - (4 of 56) Authorities and the SEC, and . The Parent and Merger Subsidiary shall give reasonable and good faith consideration the Purchaser agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel in writing with (i) any written comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Parent and the Purchaser or their counsel may receive from time to time from the Canadian Securities Authorities or the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications such comments.
(c) In the event the Minimum Condition is satisfied within 120 days after the date of the Offer and the Shares tendered under the Offer represent 90% of all of the then outstanding Shares (ii) a reasonable opportunity to participate in excluding Shares held by the response of Parent and Merger Subsidiary its affiliates and its associates), the Purchaser intends to those comments elect to acquire the remainder of the Shares on the same terms as Shares were acquired under the Offer pursuant to the provisions of Section 206 of the CBCA. If the statutory right of acquisition described above is not available, or if the Purchaser elects not to proceed under such provisions, then the Purchaser will seek to cause a special meeting of shareholders of the Company to be called to consider an amalgamation, or another transaction including a statutory arrangement, involving the Purchaser (or an affiliate of the Purchaser) and the Company for the purposes of enabling the Purchaser to provide comments on that response acquire all of the Shares not deposited under the Offer. Any such second stage transaction will be conducted in accordance with the "going private transaction" provisions within the meaning of the regulations to the Securities Act (to which reasonable Ontario), Ontario Securities Commission Policy Statement 9.1 and good faith consideration shall be given, it being understood Quebec Securities Commission Policy Statement Q-27. The Purchaser intends that the Company and its counsel shall provide consideration offered under any comments thereon as soon as reasonably practicable)subsequent "going private transaction" proposed by it would be identical to the consideration offered under the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have --------- been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icontinuing, as promptly as practicable after the date hereof and practicable, and, in any event event, within ten seven (107) Business Days after days of the date hereof, Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer to purchase any and all of the outstanding Shares at ------------ the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (1i) to the condition that there shall be being validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a expiration of the Offer that number of Shares thatwhich, together with the Shares then beneficially owned by Parent and/or Merger Subsidiaryor the Purchaser (without giving effect to shares issuable pursuant to the Stock Option Agreement), represents at least a majority of the total number of Shares outstanding on a fully fully- diluted basisbasis (the "Minimum Condition") and (ii) the other conditions set forth ----------------- in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, calculated the Purchaser shall consummate the Offer in accordance with Section 3.5(b) (its terms and accept for payment and pay for all Shares tendered pursuant to the “Offer as soon as Purchaser is legally permitted to do so under applicable law. The obligations of the Purchaser to commence the Offer and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the Minimum Condition”), Condition and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves I hereto. The Offer shall be made by means of an offer to purchase (the right "Offer to waive any of the conditions to the Offer and to make any change in Purchase") that contains the terms of or conditions to the Offer; provided----------------- set forth in this Agreement, that without the prior written consent of the Company, (i) the Minimum Condition may and the other conditions set forth in Annex I hereto. The Purchaser shall not be waived amend or waive the Minimum Condition and (ii) no shall not decrease the Offer Price, change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the Offer Price or decrease the number of Shares sought in the Offer, imposes impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer in addition to those (the "Initial Expiration Date"), except as set forth in Annex I or modifies the conditions set forth in Annex Ibelow, or amends amend any other term ----------------------- condition of the Offer in any manner adverse to the holders of the Shares without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). So long as this Agreement is in effect and the reasonable judgment Minimum Condition or any other conditions to the Offer set forth in Annex I have not been satisfied or waived, Purchaser may, without the consent of the Company. The initial , extend the expiration date of the Offer for one or more periods of up to ten additional business days each (but in no event shall Purchaser be permitted to extend the twentieth (20th) expiration date of the Offer beyond the sixtieth business day after commencement the date of this Agreement). So long as this Agreement is in effect and the Minimum Condition and the other conditions to the Offer set forth in Annex I have been satisfied or waived and such conditions shall not apply to any extension pursuant to this sentence, Purchaser may, without the consent of the Company, extend the Offer (determined in accordance with Rule 14d-1(g)(3) 14d-11 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Act Notwithstanding the foregoing, (x) Merger Subsidiary shall Purchaser may, without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition Offer. Subject to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights terms and conditions of the parties in Article 11Offer and this Agreement, extend the Offer Purchaser shall accept for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; providedpayment and pay for, in each case, that Merger Subsidiary shall not be required to extend accordance with the Offer beyond terms of the termination of this Agreement. If upon the acceptance for payment of, and payment forOffer, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares Offer (i) validly tendered and not withdrawn pursuant subject to the Offer (the time at which Shares are first accepted for payment provisions of Rule 14d-11 under the OfferExchange Act, to the extent applicable). In addition, the “Acceptance Time”) Purchaser may increase the Offer Price and (ii) validly tendered extend the Offer to the extent required by law in the Subsequent Offering Periodconnection with such increase, in each case in its sole discretion and without Company's consent.
(b) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC"), pursuant to Regulation M-A under the Exchange Act --- ("Regulation M-A"), a Tender Offer Statement on Schedule TO with respect to the --------------- Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “"Schedule TO”) that "). The Schedule TO shall include the summary term sheet required thereby ----------- under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “"Offer Documents”"), . Parent and shall the --------------- Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to all holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent the Purchaser agree to take all steps necessary to (i) ensure that the Offer Documents will comply in writing all material respects with all information concerning the Company provisions of the Exchange Act, the rules and regulations thereunder and other applicable federal securities laws and, (ii) that is the Offer Documents shall not contain any untrue statement of material fact or omit to state any material fact required to be included stated therein or necessary to make the statements made therein, in the Schedule TO light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information furnished by the Company expressly for inclusion in the Offer Documents. Each of Parent, Merger Subsidiary Parent and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, agree to 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 it shall have become (or shall become known to be) false or misleading in any material respectrespect or as otherwise required by law. Parent and Merger Subsidiary shall The Purchaser further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration the Purchaser agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel in writing with (i) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent's or the Purchaser's, as the case may be, receipt of those comments such comments, and any written 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)oral responses thereto.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise to a right to terminate the Offer pursuant to render any of the conditions set forth in Annex IA hereto incapable of being satisfied, as promptly as practicable (but in no event later that five (5) business days after the date hereof and in any event within ten (10) Business Days after the date hereofof this Agreement), Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer an offer to purchase for cash (the "Offer") any and all of the issued and outstanding shares of Common Stock (the "Shares") at a price of $8.79 per Share, net to the seller in cash, without interest. For purposes of this Agreement, the term "Transaction Consideration" shall mean $8.79 per Share in cash or any higher price as shall be paid in respect of the Shares at in the Offer. The obligations of Purchaser to commence the Offer Price. The Offer and to accept for payment and to pay for any Shares tendered shall be subject to only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive A hereto (any or all of the conditions which may, subject to the Offer and provisions hereof, be waived by Parent or Purchaser, subject to make any change in the terms of or conditions to the Offer; provided, that without applicable law). Without the prior written consent of the Company, Purchaser shall not (i) decrease the Minimum Condition may not be waived and Transaction Consideration with respect to any Shares, (ii) no decrease the number of Shares to be purchased in the Offer, (iii) change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought payable in the Offer, imposes (iv) add to or change the conditions to the Offer in addition to those set forth in Annex I A, (v) waive the Minimum Condition (as defined in Annex A) or modifies (vi) make any other change in the terms or conditions of the Offer. Parent and Purchaser expressly reserve the right to waive any condition (other than the Minimum Condition) specified in Annex A or to increase the Transaction Consideration. Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if the conditions set forth in Annex IA are not satisfied or, or amends any other term to the extent permitted hereby, waived by Purchaser as of the date the Offer would otherwise have expired, then, except to the extent that such conditions are incapable of being satisfied, Purchaser will extend the Offer from time to time until the earlier of the consummation of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer date which is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend from the original expiration date of the Offer beyond (such date, the termination "Final Date"). Purchaser shall, subject to the terms and conditions of this Agreement. If upon the acceptance Offer, accept for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant as soon as it is legally permitted to do so under applicable law; provided, however, that Purchaser shall be entitled to extend the Offer, Merger Subsidiary has not acquired Offer one or more times beyond the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering Final Date for an aggregate period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than up to ten (10) business days immediately following if on the Expiration Date. Merger Subsidiary Final Date the conditions to the Offer set forth in Annex A have been satisfied or waived but there shall not terminate or withdraw have been tendered that number of Shares which would equal at least ninety percent (90%) of the issued and then outstanding Shares. Purchaser shall be obligated to consummate the Offer prior to its Expiration Date, unless immediately upon reaching such ninety percent (90%) threshold. Such extended date shall then be the Final Date for purposes of this Agreement is terminated in accordance with Article 11 hereofAgreement. Subject to the foregoing, including the requirements of Rule 14d-11The Company agrees that it will not tender, and upon the terms and subject will not permit any of its subsidiaries to the conditions of the Offertender, Merger Subsidiary shall, and Parent shall cause any Shares held by it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn any such subsidiary pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had Subject to the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis ---------- Agreement, as promptly as practicable after the date hereof and but in any no event within ten (10) Business Days after the date hereoflater than November 30, Merger Subsidiary shall (1998, Sub shall, and Parent shall cause Merger Subsidiary Sub to) commence (, commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), the ------------ Offer. 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 purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition conditions set forth in the attached Exhibit ------- C (the "Offer Conditions") (any of which may be waived in whole or in part by - ---------------- Sub in its sole discretion, except that there Sub shall be validly tendered not waive the Minimum Condition (as defined in Exhibit C) without the consent of the Company) and not withdrawn --------- subject to the rights of Parent or Sub to terminate this Agreement as provided in accordance with Section 8.
1. Sub expressly reserves the right to modify the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares except that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 without the prior written consent of the Company, Sub shall not (i) reduce the Minimum Condition may not be waived and number of Shares subject to the Offer, (ii) no reduce the Offer Price, (iii) impose any other conditions to the Offer other 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 may be made that changes the form of consideration to be paid, decreases payable in 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, or amends (vi) amend any other term of the Offer in any manner adverse to the holders of Shares in Shares. Notwithstanding the reasonable judgment foregoing, Sub may, without the consent of the Company. The initial , (i) extend the Offer, if at the scheduled or extended expiration date of the Offer shall be the twentieth (20th) business day after commencement any of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (Conditions shall not be satisfied or waived, until such date, time as such conditions are satisfied or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoingwaived, (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff --- thereof applicable to the Offer or any period required by Applicable Law and (yiii) if any condition to the all Offer is not Conditions are satisfied or waived on any scheduled Expiration Datebut the number of Shares tendered is at least equal to 75%, Merger Subsidiary shallbut less than 90%, subject to the rights of the parties in Article 11then outstanding number of Shares, extend the Offer for any reason on one or more periods (each in the reasonable judgment of Merger Subsidiary occasions for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 15 business days eachbeyond the latest expiration date that would otherwise be permitted under clause (i) until such conditions are satisfied or waived; provided(ii) of this sentence, in each casecase subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Sub agree that Merger Subsidiary if at any scheduled expiration date of the Offer, the Minimum Condition, the HSR Condition (as defined in Exhibit C) or --------- either of the conditions set forth in paragraphs (e) or (f) of Exhibit C shall --------- not have been satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (a), (b), (c), (d) and (g) shall then be required to satisfied, at the request of the Company (confirmed in writing), Sub shall extend the Offer beyond from time to time, subject to the termination right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the terms and conditions of the Offer and this Agreement. If upon the acceptance for payment of, Sub shall, and payment Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior that Sub becomes obligated to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment payment, and pay for, pursuant to the Offer as promptly soon as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn in any event in compliance with the obligations respecting prompt payment pursuant to the Offer (the time at which Shares are first accepted for payment Rule 14e-1(c) under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering PeriodExchange Act.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D- ------------ 1") with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto- Offer, the “Schedule TO”) that which shall include the summary term sheet required thereby and, as exhibits, the Offer contain an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule 14D-1 and other appropriate ancillary the documents included therein pursuant to which the Offer documents (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), and Parent and Sub --------------- shall cause to be disseminated the Offer Documents to be disseminated to all holders of SharesShares as and to the extent required by applicable Federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company each 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 Subsidiary shall Sub further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counsel (it being understood that shareholders of the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Company. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given, it being understood that 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 comments thereon as soon as reasonably practicable)Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex II hereto, as promptly as practicable after the date hereof and but in any no event within ten (10) later than 15 Business Days after following the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) an offer (the Offer “Offer”) to purchase any and all of the outstanding Shares at a price of $0.35 per Share, net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below)expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority 65% of the total number of Shares outstanding on a fully diluted basisoutstanding, calculated in accordance with Section 3.5(b) excluding Restricted Stock (the “Minimum Condition”), ) and (2) to the other conditions set forth in Annex I. 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, provided that without the prior written consent of the Company, (i) the Minimum Condition may be waived only with the prior consent of the Company, which shall not be waived unreasonably withheld or delayed in the event that a majority of the Shares have been tendered, (ii) any material change to the terms and conditions of the Offer may only be made with the prior consent of the Company, which shall not be unreasonably withheld or delayed and (iiiii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I or modifies I. Notwithstanding the conditions set forth in Annex Iforegoing, or amends any other term of without the Offer in any manner adverse to the holders of Shares in the reasonable judgment consent of the Company. The initial , Merger Subsidiary shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall be the twentieth not have been satisfied or waived, until such conditions are satisfied or waived and (20thii) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law applicable law and (yiii) if any condition to the Offer is not satisfied or waived Table of Contents on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary occasions for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer more than 10 Business Days beyond the termination latest expiration date that would otherwise be permitted under clause (i) or (ii) of this Agreement. If upon sentence, if, on such expiration date, the acceptance for payment of, and payment for, all number of Shares validly tendered (and not withdrawn withdrawn) pursuant to the Offer, together with the Shares then owned by Parent, represents more than the Minimum Condition but less than 90% of the outstanding Shares; provided that under no circumstances shall Merger Subsidiary has Subsidiary, without the prior consent of the Board of Directors of the Company, which consent shall not acquired be unreasonably withheld, extend the Requisite Short Form Merger SharesOffer to an expiration date more than 50 Business Days beyond the date that the Offer is commenced. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereofAct. 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 it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds)to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, but no later than 15 Business Days after the public announcement of the terms of this Agreement, Parent and Merger Subsidiary shall (i) file 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 shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and shall (ii) cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or and 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. Parent and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document the Schedule TO is filed with the SEC. In the event that this Agreement has been terminated pursuant to Article 11, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to promptly terminate the Offer without accepting any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Shares for payment.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex II hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall but in no event later than five business days following the public announcement of the terms of this Agreement, commence an offer (and Parent shall cause Merger Subsidiary tothe "Offer") commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares shares of common stock, par value $.01 per share (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company at a price of $30.50 per Share (including such associated Rights), net to the Offer Priceseller in cash. The Offer shall be subject only (1) to the condition that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, Offer prior to the Expiration Date (as defined below), expiration date of the Offer and not withdrawn a number of Shares thatwhich, together with the Shares then owned by Parent and/or and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding on a fully diluted basis, calculated in accordance with Section 3.5(bShares being hereinafter referred to as the "Fully Diluted Shares") (the “"Minimum Condition”), ") and (2) to the other conditions set forth in Annex I. I hereto. Parent and Merger Subsidiary expressly reserves reserve 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; providedprovided that, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that which changes the form of consideration to be paid, decreases the Offer Price price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I I, changes or modifies waives the conditions Minimum Condition, extends the Offer (except as set forth in the following sentence), or makes any other change to any condition to the Offer set forth in Annex I, or amends any other term of the Offer in any manner I which is adverse to the holders of Shares in Shares. Subject to the reasonable judgment of the Company. The initial expiration date terms of the Offer shall be in this Agreement and the twentieth satisfaction (20thor waiver to the extent permitted by this Agreement) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under conditions to the Exchange Act) (such dateOffer, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance accept for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; provided that Merger Subsidiary has may extend the Offer if, at the scheduled expiration date of the Offer or any extension thereof any of the conditions to the Offer shall not acquired the Requisite Short Form Merger Shareshave been satisfied, until such time as such conditions are satisfied or waived, and Merger Subsidiary maymay extend the Offer for a further period of time of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, prior to the expiration date of the Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Fully Diluted Shares. Subject to Section 9.1, if the condition set forth in clause (ii) of the first paragraph of Annex I is not satisfied as of the date the Offer would otherwise have expired, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis extend the necessary funds), accept for payment and pay for, as promptly as practicable after Offer until the expiration earlier of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (date that is 30 days after the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) scheduled expiration date and (ii) validly tendered the date the condition set forth in clause (ii) of the Subsequent Offering Periodfirst paragraph of Annex I is satisfied.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC (defined below in Section 4.1(a)) a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal (together with all any supplements or amendments and supplements thereto and including exhibits thereto, collectively the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “"Offer Documents”), ") and shall (ii) cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company each 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 it shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, 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 on the Schedule TO and the Offer Documents each time before any such document is 14D-1 prior to its being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated pursuant to Section 7.1 and none of the events set forth in clause (iii) of Annex I shall have occurred and or be continuing thatexisting, had the Offer been commencedPurchaser shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Purchaser to, promptly (but no later than five (5) business days) following the public announcement of the execution of this Agreement commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to purchase any and all of the outstanding Shares at the Offer Price. .
(b) The obligations of Purchaser to consummate the Offer and to accept for payment and pay for any of the Shares tendered shall be subject only (1) to the condition conditions set forth on Annex I, including that there shall be validly tendered and not withdrawn in accordance with the terms a minimum of sixty-seven percent (67%) of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basisbasis (including for purposes of such calculation all Shares issuable upon the cash exercise of all vested and unvested stock options, calculated in accordance with Section 3.5(bwarrants and conversion of convertible securities or other rights to purchase or acquire Shares) being validly tendered and not withdrawn prior to the expiration of the Offer (the “"Minimum Condition”"), and (2) . 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 back-up or other conditions set forth applicable withholding or stock transfer taxes. The Offer shall remain open until 12:00 Midnight, New York City time, on the date that is twenty (20) business days following the commencement of the Offer; which shall be the "Expiration Date," unless Purchaser extends the Offer as permitted ---------------- by this Agreement, in Annex I. Merger Subsidiary which case the "Expiration Date" means the latest time and --------------- date to which the Offer is extended.
(c) Purchaser expressly reserves the right in its sole discretion to waive any of the conditions to the Offer and (other than the condition set forth in clause (i) unless agreed to by the Company or (iii)(E) of Annex I), to increase the price per Share payable in the Offer, to extend the duration of the Offer, or to make any change other changes in the terms and conditions of or conditions to the Offer; , provided, however, -------- ------- that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no such change may be made that changes the form of consideration to be paid, which decreases the Offer Price or price per Share payable in the Offer, reduces the maximum number of Shares sought to be purchased 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, or amends any other term material terms of the Offer in any a manner materially adverse to the holders of Shares in Company's shareholders, and provided, further, that the reasonable judgment of Offer may not, -------- ------- without the Company. The initial expiration date of 's prior written consent, be extended beyond 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, Purchaser may, without the consent of the Company but upon notification of the Company, (xi) Merger Subsidiary shall extend the Offer offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or any period required by Applicable Law and (yii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide make available a subsequent offering period (“Subsequent Offering Period”) in accordance with within the meaning of Rule 14d-11 of under the 1934 Act of Exchange Act) which shall not less than three (3) nor more than exceed ten (10) business days immediately following days.
(d) The Offer shall be made by means of an offer to purchase (the Expiration Date. Merger Subsidiary "Offer ----- to Purchase") containing the terms set forth in this Agreement and the ----------- conditions set forth in Annex I. Concurrently with the commencement of the Offer, Parent and Purchaser shall not terminate or withdraw file with the SEC a tender offer statement on Schedule TO reflecting the Offer prior to its Expiration Date(together with all exhibits, unless this Agreement is terminated in accordance with Article 11 hereofamendments and supplements thereto, the "Schedule TO"). Subject to the foregoing, including the requirements of Rule 14d-11, and upon Upon the terms and subject to the ----------- conditions of the OfferOffer (including, Merger Subsidiary shallif the Offer is extended or amended, the terms and Parent shall cause it to (including by providing conditions of any such extension or causing to be provided to Merger Subsidiary on a timely basis the necessary fundsamendment), accept Purchaser will purchase by accepting for payment and will pay forfor Shares validly tendered and not properly withdrawn, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC a Tender Offer Statement on Expiration Date. The Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, will contain or will incorporate by reference the Offer to Purchase (or portions thereof) and a form forms of the related letter of transmittal and summary advertisement advertisements (which Schedule TO, Offer to Purchase and other appropriate ancillary Offer documents (collectivelydocuments, together with any supplements or amendments or supplements thereto, are referred to herein collectively as the “"Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary --------------- Purchaser and the Company agrees agree promptly to correct any information provided by it any of them 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. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders 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 Offer Documents will, on the Schedule TO and the Offer Documents each time before any such document is filed date filed, comply in all material respects with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt all provisions of those 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icontinuing, as promptly as practicable after the date hereof and practicable, and, in any event event, within ten (10) Business Days after seven business days of the date hereof, Merger Subsidiary the Purchaser shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase any and for cash all of the outstanding Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (1i) to the condition that there shall be being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction of the Minimum Condition and subject to the prior satisfaction or waiver by Parent or the Purchaser of the other conditions of the Offer set forth in Annex I hereto (it being understood that the Minimum Condition cannot be waived or modified without the consent of the Company), the Purchaser shall, in accordance with the terms of the Offer, prior to consummate the Expiration Date (as defined below), a number of Offer and accept for payment and pay for all Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), validly tendered and (2) to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions not withdrawn pursuant to the Offer and to make any change in the terms promptly after expiration of or conditions to the Offer; provided, that without the prior written consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to which shall initially be the Offer in addition to those set forth in Annex I or modifies 20th business day following the conditions set forth in Annex I, or amends any other term commencement of the Offer in any manner adverse to Offer, provided, however, that (w) if on the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement or on any subsequent scheduled expiration date of the Offer (determined as extended in accordance with Rule 14d-1(g)(3) under this Agreement), all conditions to the Exchange Act) (Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such dateperiod as the Purchaser may determine until such conditions are waived or satisfied; provided, or such subsequent however, that, if, as of any scheduled expiration date to which the expiration of the Offer is extended pursuant Offer, (A) any of the events set forth in clauses (a), (b) or (c) of Annex I shall have occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser) then, subject to the right of Parent and the Purchaser to terminate this agreement in accordance with the terms of this Agreementits terms, the “Expiration Date”Purchaser shall be required to extend the Offer unless such conditions could not reasonably be expected to be waived or satisfied by the Outside Date or (B) any of the events set forth in clause (f) of Annex I (but only with respect to unintentional failures of such representations and warranties to be true and correct) or clause (g) of Annex I (but only with respect to non-willful breaches of, or failures to comply with, covenants and agreements) shall have occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser). Notwithstanding , then, subject to the foregoingright of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the offer to a date that is not less than 30 days after Purchaser notified the Company of such event, (x) Merger Subsidiary shall the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or any period required by Applicable Law and Offer, (y) if any condition to on the then scheduled expiration date of the Offer is there shall have been validly tendered and not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights withdrawn at least 80% but less than 90% of the parties Shares outstanding on a fully diluted basis, the Purchaser may, in Article 11its sole discretion, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an additional period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 10 business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment ofdays, and payment for, all Shares validly tendered and not withdrawn pursuant to (z) the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary Purchaser may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of under the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following Exchange Act. In addition, the Expiration Date. Merger Subsidiary shall not terminate or withdraw Purchaser may increase the Offer prior to its Expiration Date, unless this Agreement is terminated in accordance with Article 11 hereof. Subject Price and extend the Offer to the foregoingextent required by law in connection with such increase, including in each case in its sole discretion and without the requirements of Rule 14d-11Company’s consent; provided, and upon however, that neither Parent nor Purchaser shall otherwise modify the terms and subject Offer in any manner adverse to the conditions holders of Shares without the OfferCompany’s consent, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay for, except as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered specifically permitted in the Subsequent Offering Periodthis Agreement.
(b) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary the Purchaser shall file 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 theretoOffer, the “Schedule TO”) that which shall include the summary term sheet required thereby and, as exhibits, offer to purchase and forms of the Offer to Purchase and a form of related letter of transmittal and summary advertisement and all other appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), . Parent and the Purchaser shall cause the Offer Documents to be filed with the SEC and disseminated to all holders of SharesShares as required by applicable federal securities laws. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to 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 it shall have become (or shall become known to be) false or misleading in any material respectrespect or as otherwise required by law. Parent and Merger Subsidiary shall the Purchaser further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, Shares 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 on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SECSEC or disseminated to holders of Shares. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration the Purchaser agree to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, communications that Parent, Merger Subsidiary the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt of those comments such comments, and any written 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)oral responses thereto.
Appears in 1 contract
Sources: Merger Agreement (Dmi Furniture Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.1, Parent shall cause Sub to, and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex ISub shall, as promptly soon as practicable after the date hereof and hereof, but in any event within ten five (105) Business Days business days after the date public announcement of the execution hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 14d-2(a) under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "Exchange Act")), a tender offer (the "Offer") the Offer to purchase any and for all of the issued and outstanding Shares shares of common stock, par value $0.01 per share, of Company (the "Company Common Stock") at a price of $6.25 per share (the "Per Share Price"), net to the sellers in cash, subject to the conditions set forth in Annex I hereto and incorporated herein by reference (the "Offer Price. Conditions") including the Minimum Condition (as defined therein).
(b) The Offer shall be made by means of an offer to purchase which shall contain as conditions only the Offer Conditions and, subject only (1) to the next succeeding sentence, shall otherwise contain, and be consistent with, the terms and conditions of the Offer as described in this Agreement. Each of Sub and Parent expressly reserves the right, in its sole discretion, to waive any such condition that there shall be validly tendered and not withdrawn in accordance with make any other changes to the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and (2) to 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 that, without the prior written consent of the Company, (i) neither Parent nor Sub shall amend or waive the Minimum Condition may not be waived and (ii) no Condition, change may be made that changes the form of consideration to be paidpaid in the Offer, decreases decrease the Offer Per Share Price or the number of Shares sought in shares of Company Common Stock sought, impose additional conditions to 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, or amends amend any other term condition of the Offer in any manner adverse to the holders of Shares the shares of Company Common Stock. The Per Share Price shall be net to the sellers in cash, without interest, subject to reduction only for any applicable withholding taxes. Notwithstanding the reasonable judgment foregoing, Sub may, without the consent of Company, (i) extend the Offer on one or more occasions for up to ten (10) business days for each such extension beyond the then-scheduled expiration date (the initial scheduled expiration date being twenty (20) business days following commencement of the Company. The initial Offer), if at the then-scheduled expiration date of the Offer shall be the twentieth (20th) business day after commencement any of the Offer (determined in accordance with Rule 14d-1(g)(3) under conditions to Sub's obligation to accept for payment and pay for the Exchange Act) (shares of Company Common Stock shall not be satisfied or waived, but not later than February 28, 2000, until such datetime as such conditions are satisfied or waived, or such subsequent date and, at the request of Company, Sub shall, subject to which the expiration of Parent's right to terminate this Agreement pursuant to Article VIII, extend the Offer for additional periods ending up to, but not later than, February 28, 2000, if the only condition not satisfied or earlier waived on the then-scheduled expiration date is extended pursuant to and the HSR Approval Condition (as defined in accordance with the terms of this Agreement, the “Expiration Date”Annex I hereto). Notwithstanding the foregoing, (xii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable Law and (yiii) if any condition provided that Parent and Sub irrevocably waive the conditions, other than the Minimum Condition, to the Offer is set forth in Annex I and agree not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to assert such conditions as a basis for not consummating the rights of the parties in Article 11Offer, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary has not acquired the Requisite Short Form Merger Shares, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following beyond the Expiration Date. Merger Subsidiary latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if the Minimum Condition shall have been satisfied but there shall not terminate or withdraw have been tendered sufficient shares of Company Common Stock so that the Offer prior to its Expiration Date, unless this Agreement is terminated Merger could be effected without a vote of Company's stockholders in accordance with Article 11 hereofSection 253 of the Delaware General Corporation Law (the "DGCL"). 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 shallincluding the Offer Conditions, and Parent Sub shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), accept for payment and pay forfor all shares of Company Common Stock duly tendered, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to withdrawn, at the Offer (the earliest time at which Shares it is permitted to do so under applicable law; provided, that, as set forth above, Sub shall have the right, in its sole discretion, to extend the Offer for up to ten (10) business days notwithstanding the prior satisfaction or waiver of the Offer Conditions, in order to attempt to permit the tender of sufficient shares of Company Common Stock to effect the Merger pursuant to Section 253 of the DGCL. It is agreed that the Offer Conditions other than the Minimum Condition are first accepted solely for payment under the Offerbenefit of Parent and Sub and that all Offer Conditions may be asserted by Parent or Sub, unless irrevocably waived, regardless of the “Acceptance Time”circumstances resulting in a condition not being satisfied (except for any action or inaction by Sub or Parent constituting a breach of this Agreement) and, except with respect to the Minimum Condition, may be waived by Parent or Sub, in whole or in part at any time and (ii) validly tendered from time to time, in the Subsequent Offering Periodtheir sole discretion.
(bc) On As soon as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2(a) under the Exchange Act), Parent and Merger Subsidiary Sub, with the cooperation of, and subject to the prior review thereof by, Company, shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, will contain or will incorporate by reference the Offer to Purchase (or portions thereof) and a form forms of the related letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectivelywhich documents, together with any supplements or amendments or supplements thereto, and together with the “Schedule 14D-1, are referred to herein collectively as the "Offer Documents”"), and shall cause the Offer Documents to be disseminated to all holders of Shares. The Company shall promptly upon request of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees promptly Company, with respect to correct any information provided supplied by it for use in the Schedule TO or Offer Documents, agrees promptly to correct the Offer Documents if and to the extent that such information any of them shall have become (or shall become known to be) false or misleading in any material respect. Parent respect or any event occurs which should be set forth in an amendment or supplement to the Offer Documents, and Merger Subsidiary Sub shall take all steps necessary to cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the such Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock, 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).reasonable
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.01 and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex IA hereto shall have occurred or be existing (and shall not have been waived by ▇▇▇▇▇▇▇▇▇), ▇▇▇▇▇▇▇▇▇ shall commence the Offer as promptly as reasonably practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) but in no event later than five business days after the initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer PriceOffer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (1) to the condition (the "MINIMUM CONDITION") that there shall be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the Expiration Date (as defined below), a number of Shares that, together with when added to the Shares then already owned by Parent and/or Merger SubsidiaryParent, represents shall constitute at least a majority of the total number of then outstanding Shares outstanding on a fully diluted basisbasis (including, calculated in accordance with Section 3.5(bwithout 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)) (shall have been validly tendered and not withdrawn prior to the “Minimum Condition”), expiration of the Offer and (2) also shall be subject to the satisfaction or waiver of each of the other conditions set forth in Annex I. Merger Subsidiary 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 may be made which decreases the price per Share payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer, modifies the conditions to the Offer and to make any change set forth in the terms of Annex A hereto or imposes conditions to the Offer other than those set forth in Annex A hereto or, except as provided in the next sentence, extends the Offer; provided. Notwithstanding the foregoing, that Purchaser may, without the prior written consent of the Company, (i) extend the Minimum Condition may Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be waived and satisfied or waived, (ii) no change may be made that changes the form of consideration to be paid, 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, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. 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 Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer, or any period required by Applicable Law and (yiii) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum an aggregate period of time reasonably expected by Merger Subsidiary to be required to satisfy such conditions but in any event not in excess of twenty (20) more than 5 business days eachbeyond the latest applicable date that would otherwise be permitted under clause (i) until or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment, and to pay for, the Shares are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend but the Offer beyond the termination number of this Agreement. If upon the acceptance for payment of, and payment for, all Shares validly tendered and not withdrawn pursuant to the OfferOffer equals 80 percent or more, Merger Subsidiary has not acquired the Requisite Short Form Merger Sharesbut less than 90 percent, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act outstanding Shares. The Per Share Amount shall, subject to applicable withholding of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Datetaxes, unless this Agreement is terminated in accordance with Article 11 hereof. Subject be net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Subsidiary Purchaser shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis Purchaser to, promptly after expiration of the necessary funds)Offer, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, for all Shares (i) validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Periodwithdrawn.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"SCHEDULE 14D-1") with respect to the Offer. The Schedule TO”14D-1 shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") that shall include and forms of the related letter of transmittal and any related summary term sheet required thereby and, as exhibitsadvertisement (the Schedule 14D-1, the Offer to Purchase and a form of such other documents, together with all supplements and amendments thereto, being, collectively, the "OFFER DOCUMENTS"). Purchaser shall disseminate the Offer to Purchase, the related letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and shall cause the Offer Documents to be disseminated to all holders of Sharesthe extent required by applicable federal securities laws. The Company shall promptly upon request Offer Documents will comply in all material respects with the provisions of Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be included in the Schedule TO or the Offer Documentsapplicable federal securities laws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information which shall have become (or shall become known to be) false or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case, case as and to the extent required by applicable U.S. federal securities laws. The Company .
(c) Purchaser and its counsel shall be given a reasonable opportunity Parent will file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to review and comment on the Schedule TO and the Offer Documents each time before any such document is required to be filed with pursuant to Chapter 80B of the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable)Minnesota Statutes.
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Sources: Merger Agreement (Spine Tech Inc)