The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), 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 for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Eagle Supply Group Inc), Merger Agreement (Gulfside Supply, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I Exhibit A hereto shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no not later than seven five business days after the public announcement of the execution and delivery of this Agreement), Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer ), an offer to purchase for cash (the "Offer") all outstanding shares of the shares of Company Common Stock at a price of $11.25 per share, net to the seller in cash (the "Offer PriceConsideration"). The obligations obligation of Parent and Sub to commence the Purchaser to Offer, consummate the Offer, accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of in the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other those conditions set forth in Annex I Exhibit A hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable .
(excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”b) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves reserve the right to waive amend or modify the terms of the Offer, except that, without the prior written consent of the Company Company, Sub shall not (such consent to be authorized by and Parent shall not cause Sub to): (i) decrease the board of directors Offer Consideration, change the form of the Company Offer Consideration or a duly authorized committee thereof)decrease the number of Shares sought pursuant to the Offer, neither the Parent nor the Purchaser shall (iii) amend or waive satisfaction the condition that there shall be validly tendered and not withdrawn prior to the time the Offer expires a number of shares of Company Common Stock which constitutes a majority of the Minimum ConditionShares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" having the following meaning, (ii) decrease the Offer Price, (iii) change the form as of consideration payable in the Offer, (iv) decrease any date: the number of shares of Company Common Stock sought outstanding, together with Shares which the Company may be required, now or in the Offerfuture, to issue pursuant to options, warrants or other rights or obligations outstanding at that date), (viii) impose additional conditions to extend the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term expiration date of the Offer in a manner (except that is materially adverse to Sub may extend the holders expiration date of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (xa) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, regulation or position interpretation of the United States Securities and Exchange Commission (“the "SEC”"), (b) or for such periods as Sub may reasonably deem necessary (but not to a date later than the staff thereof applicable 60th calendar day after the date of commencement) in the event that any condition to the Offer and is not satisfied, or (zc) on for one or more occasions times for an aggregate period of up to 15 days (all such occasions aggregating not more to exceed 60 calendar days from the date of commencement) for any reason other than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer those specified in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.immediately preceding
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hc Acquisition Corp), Merger Agreement (Ero Marketing Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VII, then (i) not later than the first Business Day after execution of this Agreement Agreement, Parent and none the Company shall issue a public announcement of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in any no event no later than seven business days two Business Days after the execution and delivery date of this Agreement)such announcement, commence amend (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to provide for the purchase for cash of all of the outstanding shares of Company Common Stock at the Offer PricePrice Per Share subject to reduction only for any applicable federal withholding taxes. The obligations initial expiration date of the Purchaser Offer shall be the tenth Business Day from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms hereof. The Offer shall be made pursuant to a Supplemental Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "MINIMUM SHARES") being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”"MINIMUM CONDITION") and (ii) the satisfaction of the other conditions set forth in Annex I A hereto, any of which conditions may be waived by Merger Sub in its sole discretion. “Fully-Diluted Basis” shall meanThe Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, as of any dateneither Parent nor Merger Sub will (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of the shares of Company Common Stock issued and outstandingsought pursuant to the Offer or change the form of consideration payable in the Offer, together with (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer all conditions to the Offer have not been satisfied or waived, Merger Sub may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that may be have been validly tendered and not withdrawn represent more than 50% but less than 90% of the issued by and outstanding shares of the Company pursuant to warrantsCommon Stock; provided, optionshowever, rightsthat in no event shall the extensions permitted under the foregoing clause (y) exceed, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below in the Offer Priceaggregate, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement)10 Business Days. Subject Parent and Merger Sub will, subject to the terms and conditions of the Offer and this Agreement, and use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver by of all the Parent or conditions to the Purchaser of the Minimum Condition and the other conditions Offer set forth in Annex I hereto as A, and subject to the terms and conditions of any expiration date of the Offerthis Agreement, the Purchaser Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as permitted under applicable law, recognizing that the parties wish to close as expeditiously as possible after all Required Regulatory Approvals are obtained and following the expiration or termination of the Offer (subject all applicable waiting periods under antitrust or other competition laws of any applicable jurisdictions. Parent shall provide, or cause to the applicable provisions of Rule 14d-11 under the Exchange Actbe provided, to Merger Sub, on a timely basis, the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree any shares of Company Common Stock that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation Merger Sub becomes obligated to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Vlsi Technology Inc), Merger Agreement (Vlsi Technology Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven five business days after the public announcement of the execution and delivery of this Agreementhereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “"Exchange Act”")) a tender offer (the Offer to purchase "Offer") for cash all of the outstanding shares of Company Common Stock (including the Company Preferred Rights) at a price of $20 per share of Company Common Stock, net to the seller in cash (such price, or any such higher price per share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of shares of Company Common Stock (excluding shares of Company Common Stock held in the Company's treasury) which represents at least a majority of the Company Common Stock outstanding on a Fully Diluted Basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consummate the Offer Pricein accordance with its terms ("Fully Diluted Basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under the Existing Options). The obligations of the Purchaser Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)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 and having only Agreement, the Minimum Condition and the other conditions set forth in Annex I A hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they Merger Sub shall not terminate amend or withdraw the Offer unless, at the Initial Expiration Date, waive the Minimum Condition and shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) Price or decrease the number of shares of Company Common Stock sought in the Offersought, (v) impose additional conditions to the Offer, (vi) or amend any other condition of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Company Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), Stock without the prior written consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision if on the initial scheduled expiration date of the Offer which shall be twenty business days after the date the Offer is commenced, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act to have expired or been terminated, Merger Sub shall extend the Offer in expiration date from time to time until two business days after the case expiration of this clause (z) shall constitute a the waiting period under the HSR Act. Merger Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and Offer, accept for payment Company Common Stock 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 its right to terminate the Agreement under Sections 8.1(b)(iiiOffer (as it may be extended), the Company Common Stock tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Stock, Merger Sub may extend the Offer two times for a period not to exceed ten business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer.
(c)(iv)b) As soon as practicable on the date the Offer is commenced, or Parent and Merger Sub shall file with the United States Securities and Exchange Commission (c)(vthe "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). In additionThe Schedule 14D-1 will include, subject as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of Section 8.1(b)(iii) of this Agreement, ifapplicable federal securities laws and, on the Initial Expiration Date date filed with the SEC and on the date first published, sent or given to the 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 events set forth circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information furnished by the Company to Parent or Merger Sub, in subparagraph writing, expressly for inclusion in the Offer Documents. The information supplied by the Company to Parent or Merger Sub, in writing, expressly for inclusion in the Offer Documents and by Parent or Merger Sub to the Company, in writing, expressly for inclusion in the Schedule 14D-9 will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Annex I shall have occurred Parent and Merger Sub will take all steps necessary to cause the Offer Documents to be continuing filed with the SEC and shall not have been waived by to be disseminated to the Purchaser, thenStockholders, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law applicable federal securities laws. Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in connection the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Parent and Merger Sub will take all steps necessary to cause the Offer Documents as so corrected to be filed with such increasethe SEC and to be disseminated to the Stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, Parent and Merger Sub will provide the Company and its counsel, in the form in which they are received, with any comments, whether written or oral, Parent, Merger Sub or their counsel may receive from time to time from the SEC or its sole discretion and without staff with respect to the consent Offer Documents promptly after the receipt of the Companysuch comments.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Walbro Corp), Agreement and Plan of Merger (Ti Group PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VII and none of the events set forth in Annex I ANNEX A hereto shall have occurred and or be continuingexisting, the Purchaser shall, and Parent shall cause Purchaser to, as promptly as reasonably practicable following after the execution of this Agreement date hereof (but in any no event no later than seven the tenth business days day after the execution and delivery public announcement of the terms of this Agreement), commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")), an offer (the "OFFER") the Offer to purchase for cash any and all of the outstanding shares of Company Common Stock (and associated Rights) at a price of Twenty-One United States Dollars ($21.00) per share and associated Right (the "OFFER PRICE"), net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer Priceshall be the twentieth business day from and after the date the Offer is commenced (the "INITIAL EXPIRATION DATE"). The obligations obligation of the Purchaser to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly (and associated Rights) tendered pursuant to the Offer on or prior shall be subject, except as provided in Section 1.1(b), only to the expiration satisfaction of the Offer and not withdrawn shall be subject to (i) there being the condition that a number of shares of Company Common Stock representing not less than fifty-one percent (51%) of the total issued and outstanding shares of Company Common Stock on a fully-diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights or securities convertible into shares of Company Common Stock) (excluding any shares of Company Common Stock held by the Company or any of its Subsidiaries) on the date such shares are purchased pursuant to the Offer have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”"MINIMUM CONDITION") and (ii) the other conditions set forth in Annex I ANNEX A hereto. “Fully-Diluted Basis” shall mean; PROVIDED, as of any dateHOWEVER, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify any of the conditions to the Offer (other than the Minimum Condition) and to make any change in the terms or conditions of the OfferOffer in its sole discretion, except that, without subject to Section 1.1(b).
(b) Without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser shall will (i) amend or waive satisfaction decrease the price per share of Company Common Stock payable in the Minimum ConditionOffer, (ii) decrease the Offer Pricenumber of shares of Company Common Stock sought in the Offer, (iii) change the form of consideration payable in the Offer, (iv) decrease impose conditions to the number of shares of Common Stock sought Offer in the Offeraddition to those set forth in ANNEX A, (v) impose additional conditions except as provided below or required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the conditions set forth Offer in Annex I in any a manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding anything in this Agreement to the foregoing, the Purchaser may (but shall not be obligated to)contrary, without the consent of the Company Company, Purchaser shall have the right to extend the Offer (x) beyond the Initial Expiration Date in the following events: (i) from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration DateDate (or extended expiration date of the Offer, if applicable), any of the conditions to the Offer (other than the Minimum Condition to which this clause does not apply) shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerwaived, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but until such conditions are reasonably capable of being satisfied in such period, or waived; (yii) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and or any period required by applicable law; (ziii) on if all conditions to the Offer (other than the Minimum Condition) are satisfied or waived, but the Minimum Condition has not been satisfied, for one or more occasions periods not to exceed thirty (30) business days (for all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) extensions); or (yiv) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Offer are satisfied or earlier waived, waived but the number of shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents withdrawn is less than ninety percent (90%) of the then outstanding number of shares of Company Common Stock on a Fully-Diluted Basis; providedfully diluted basis, however, that Purchaser’s decision for an aggregate period not to extend the Offer in the case of this clause exceed twenty (z20) shall constitute a waiver of the conditions set forth in clauses business days (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iiifor all such extensions), (c)(iv), or (c)(v)PROVIDED that Purchaser shall accept and promptly pay for all securities tendered prior to the date of such extension and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension. In addition, subject Parent and Purchaser agree that Purchaser shall from time to time extend the provisions of Section 8.1(b)(iiiOffer, if requested by the Company, (i) of this Agreement, if, on if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), any of the events set forth conditions to the Offer other than (or in subparagraph (caddition to) of Annex I shall have occurred and be continuing and the Minimum Condition shall not have been waived by or satisfied, until (taking into account all such extensions) the Purchaserearlier of June 30, then2000 or such earlier date upon which any such condition (other than the Minimum Condition) shall not be reasonably capable of being satisfied prior to June 30, in each such case2000; or (ii) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), all of the Purchaser shall extend conditions to the Offer for up to other than the Minimum Condition shall have been waived or satisfied and the Minimum Condition shall not have been satisfied, until the earlier of ten (10) Business Daysbusiness days after such expiration date or June 30, 2000. In Upon the event prior satisfaction or waiver of all the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant conditions to the Offer, and subject to the terms and conditions of this Agreement, Purchaser maywill, in its sole discretionand Parent will cause Purchaser to, provide a “subsequent offering period” accept for payment, purchase and pay for, in accordance with Rule 14d-11 promulgated under the Exchange Act terms of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer.
(c) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file or cause to be filed with the SEC a “Subsequent Offering Period”). In additionTender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the Purchaser may increase the Offer Price (but not change any other condition "SCHEDULE TO") with respect to the Offer) . The Schedule TO will comply as to form and extend content in all material respects with the applicable provisions of the federal securities laws and will contain the offer to purchase and form of the related letter of transmittal (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Parent and the Company each agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect and 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. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and be disseminated to holders of shares of Company Common Stock, in each case, as and to the extent required by law in connection applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with such increasethe SEC. Parent and Purchaser agree to provide to the Company and its counsel any comments or other communications which Parent, in each case in its sole discretion and without Purchaser or their counsel may receive from the consent Staff of the CompanySEC with respect to the Offer Documents promptly after receipt thereof.
Appears in 2 contracts
Sources: Merger Agreement (International Paper Co /New/), Merger Agreement (Shorewood Packaging Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 6.1 hereof and none of the events set forth in Annex I hereto shall have occurred and be continuingare existing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), or a direct or indirect subsidiary thereof shall 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 “Securities Exchange Act”)) the Offer to purchase for cash all as promptly as practicable following the public announcement of the shares execution of Common Stock at this Agreement, but in no event later than ten (10) business days following the Offer Priceexecution of this Agreement, and shall use all reasonable commercial efforts to consummate the Offer. The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to in the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to the satisfaction of only those conditions set forth in Annex I hereto. Except as set forth in Section 1.1(b) below, Purchaser expressly reserves the right to waive any such condition or to increase the Per Share Amount. The Per Share Amount shall be net to each seller in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered to Purchaser pursuant to the Offer.
(b) Without the prior written consent of the Company, Purchaser shall not (i) there being decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought, (iii) except as expressly set forth in Annex I hereto, amend or waive satisfaction of the Minimum Condition (as defined in Annex I hereto) or (iv) impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer, Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent Offer.
(80%c) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent As soon as practicable on the date the Offer is commenced, Purchaser shall file with the Securities and Purchaser agree Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer that will comply in all material respects with the provisions of, and satisfy in all material respects the requirements of, such Schedule TO and all applicable securities laws and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase will provide a statement and forms of the related letter of transmittal, form of acceptance and summary advertisement (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in all appropriate places therein connection with the Offer and related transactions, are referred to collectively herein as the “Offer Documents”). Each of Purchaser 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 effect extent that it shall have become false or misleading in any material respect and to supplement the Purchaser’s obligation information provided by it specifically for use in the Schedule TO or the Offer Documents to purchase shares include any information that shall become necessary in order to make the statements therein, in light of Common Stock pursuant the circumstances under which they were made, not misleading, and Purchaser further agrees to take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case, as and to the Offer is not conditioned extent required by applicable securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any financing arrangements Offer Documents and any amendments thereto before they are filed with the SEC. Purchaser shall provide the Company and its legal counsel with any comments that Purchaser or subject its legal counsel may receive from the SEC or its staff with respect to the Schedule TO promptly after receipt of such comments and shall consult with the Company and its legal counsel prior to responding to any financing condition. Unless extended in accordance with this Section 1.1(a), the comments.
(d) The Offer to Purchase shall provide for an initial expiration date and time of twenty 8:00 a.m., New York City time, on the twenty-first (2021) business days day (as defined in Rule 14d-1 promulgated under the Securities Exchange Act, each a “Business Day”) following the commencement date of commencement. Purchaser agrees that it shall not (x) subject to Purchaser’s right to terminate this Agreement and the Offer (within in accordance with the meaning terms of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser Section 6.1 and the Parent agree that they shall not Annex I hereof, terminate or withdraw the Offer, or (y) extend the expiration date of the Offer unlessexcept that Purchaser may, without the consent of the Company, (i) extend the Offer (with each extension being for a period of not more than ten (10) business days) if at the Initial Expiration Date, expiration date of the Minimum Condition shall not have been satisfied or Offer the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer hereto shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerearlier waived; provided, as so extended by the Purchaserhowever, shall so expire); provided that, if, and for so long as, all the Purchaser shall, upon the written request of the Company, extend conditions to the Offer for one described in Annex I hereto have been satisfied or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of waived other than the conditions set forth in clause clauses (ii) and/or (iii) of the preamble of Annex I, Purchaser shall be required to extend the expiration date of the Offer until the earlier of the date on which the Shares are accepted for payment as permitted under the terms of the Offer or the date on which this Agreement and the Offer is terminated in accordance with Section 6.1 or Annex I hereof, respectively; (other than subparagraph (cii) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (yiii) after the acceptance of this sentence, if, on such expiration date, all of and payment for the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) Shares pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares a further period of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide time by means of a “subsequent offering period” in accordance with period under Rule 14d-11 promulgated under the Exchange Act of not more than twenty (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer20) 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 consent of the Companybusiness days.
Appears in 2 contracts
Sources: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I Article VIII, Merger Sub shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (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 on the date hereof or the following day of Merger Sub's intention to purchase for cash all of commence the shares of Common Stock at the Offer PriceOffer. The obligations obligation of the Purchaser Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer shall only be subject to (i) the condition (the "Minimum Condition") that at least the number of shares of Company Common Stock (together with the shares of the Company Common Stock, if any, then owned by Parent or Merger Sub) constituting a majority of the then outstanding shares of Company Common Stock on or a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the satisfaction or waiver of the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanExhibit A. As used herein, "fully diluted basis" means issued and outstanding shares of Company Common Stock and shares of Company Common Stock subject to issuance under vested Options (as defined in Section 2.06(c)) and shares of Company Common Stock subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any date, character relating to the number issued or unissued capital stock of the shares of Common Stock issued and outstandingCompany or securities convertible or exchangeable for such capital stock, together with but shall not include unvested Options. Merger Sub expressly reserves the shares of Common Stock that may be issued by the Company pursuant to warrantsright, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under compliance with the Exchange Act, to waive any such condition, to increase the extent applicable). The Offer shall be made by means of an offer Per Share Amount and to purchase (the “Offer to Purchase”) containing make any other changes in the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer; provided, except thathowever, without that unless Parent and Merger Sub shall have obtained the prior written consent approval of the Company (such consent to Company, no change may be authorized by made in the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall Offer which (i) amend or waive satisfaction of decreases the Minimum ConditionPer Share Amount, (ii) decrease changes the Offer Priceform of consideration to be paid in the Offer, (iii) change reduces the form maximum number of consideration payable shares of Company Common Stock to be purchased in the Offer, (iv) decrease modifies the number of shares of Common Stock sought conditions to the Offer set forth in Exhibit A or imposes conditions to the OfferOffer in addition to those set forth in Exhibit A, (v) impose additional conditions to modifies or waives the Offer, Minimum Condition or (vi) amend any except as provided in Section 1.01(b), extends the Offer. The Per Share Amount shall, subject to applicable withholding of the conditions set forth in Annex I in any manner adverse taxes, be net to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer seller in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shallcash, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities terms and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.conditions of
Appears in 2 contracts
Sources: Merger Agreement (Superior Telecom Inc), Merger Agreement (Superior Telecom Inc)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Section 8.1 of this Agreement and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I shall have occurred and be continuing, the Purchaser shallI, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution date hereof, Merger Sub shall, and delivery of this Agreement)Parent shall cause Merger Sub 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 for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Parent’s and Merger Sub’s obligation to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to in the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) the condition that there being shall be validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock subject to a Sale and Support Agreement (the “Committed Shares”), represents at least two-thirds (or such lesser number as may be determined by Parent and Merger Sub) of all shares of Company Common Stock then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Sub expressly reserves the right to waive any of the conditions to the Offer and accept for payment to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement, the Sale and pay forSupport Agreement or previously approved by the Company in writing, and Parent shall cause (i) the Purchaser to accept for payment and pay forMinimum Condition may not be waived below that number of shares of Company Common Stock that, together with the Committed Shares, represents a majority of all shares of Company Common Stock then outstanding, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of shares of Company Common Stock sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the Offer in any manner materially adverse to the holders of shares of Company Common Stock and (iii) the Offer may not be extended except as set forth in this Section 1.1(a). Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Merger Sub 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 Walk-Away Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Sub, and (z) the Walk-Away Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide one or more subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act, if, as of the commencement of each such period, the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period, together with the Committed Shares, is less than that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of shareholders of the Company, in accordance with Section 5.16 of TBCA. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable, all shares of Company Common Stock (A) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be made by means paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of an offer commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to purchase the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Offer to PurchaseSchedule TO”) containing that shall include the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase will provide a statement and forms of letter of transmittal and summary advertisement, if any, in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement respect of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (collectively, together with any amendments or supplements thereto, the “Initial Expiration DateOffer Documents”). The Purchaser , and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease cause the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number Documents to be disseminated to holders of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may (but The Company shall not be obligated to), without the consent of promptly furnish to Parent and Merger Sub in writing all information concerning the Company extend that may be required by applicable securities laws or reasonably requested by Parent or Merger Sub for inclusion in the Schedule TO or the Offer (x) beyond Documents. Each of Parent, Merger Sub and the Initial Expiration Date from time Company agrees promptly to time, correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such period information shall have become false or periods of time as the Purchaser reasonably believes are misleading in any material respect. Parent and Merger Sub agree to take all steps necessary to cause the conditions Schedule TO as so corrected to be satisfied if, at filed with the Initial Expiration Date, any conditions to SEC and the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, Documents as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not corrected to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable be disseminated to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number holders of shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenStock, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law 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 Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in connection the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with such increase, Parent and Merger Sub or their counsel in each case in its sole discretion and without any discussions or meetings with the consent of the CompanySEC.
Appears in 2 contracts
Sources: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and that none of the events set forth in Paragraph (2) of Annex I hereto shall exist or have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following after the execution of this Agreement (date hereof, but in any no event no later than seven the fifth business days day after the execution date hereof, Merger Sub shall, and delivery of this Agreement)Parent shall cause Merger Sub 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 amended (the “Exchange Act”)) the Offer to purchase for cash all of the outstanding shares of Company Common Stock at the Offer Price. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not subsequently withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior only to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to PurchaseConditions”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto). Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned The date on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a which Merger Sub “Business Day”) following the commencement of commences” the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (is hereafter referred to as the “Initial Expiration Offer Commencement Date”). The Purchaser and To the Parent agree that they shall not terminate or withdraw the Offer unlessextent permitted by applicable Law, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right to waive or modify any of the Offer Conditions and to make any change in the terms of the Offer, except that, that without the prior written consent of the Company Company, Merger Sub shall not (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (iiA) decrease the Offer Price, (iii) Price or change the form of the consideration payable in the Offer, (ivB) decrease the number or percentage of shares of Company Common Stock sought in the Offer, (v) impose additional conditions pursuant to the Offer, (viC) amend or waive the Minimum Tender Condition (as defined in Annex I), (D) impose any of conditions to the Offer in addition to the conditions set forth on Annex I, (E) amend or modify the Offer in Annex I in any a manner adverse to the holders of the shares of Company Common StockStock taken as a whole, or (viiF) amend any other term of extend the Expiration Date (as defined in Annex I) except as required or permitted by this Section 1.1(a). The Expiration Date shall be the 20th Business Day next following the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may Commencement Date (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time calculated as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (fRule 14d-1(a) (excluding any willful or intentional breach of any material obligation of the Company3) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”Act). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article IX, Parent shall, or shall cause Offer Sub to, commence an offer to acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the Company at a price of $72.00 per share of SRH Common Stock. Parent shall, and shall cause Offer Sub to, accept for payment all shares of SRH Common Stock tendered to Parent or Offer Sub at, or as soon as possible following, the Effective Time; provided, that Parent or Offer Sub shall not be required to make payment for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000. The obligation of Parent or Offer Sub to consummate the Offer and to accept for payment any shares of SRH Common Stock tendered pursuant thereto shall be subject only to the conditions set forth in Article VIII to this Agreement and none to the prior or concurrent consummation of the events set forth Merger (collectively, the "Offer Conditions"), which are for the sole benefit of Parent and Offer Sub and may be asserted by Parent or Offer Sub regardless of the circumstances giving rise to any such condition, or waived by Parent or Offer Sub in Annex I whole or in part at any time and from time to time prior to acceptance of shares for payment in its sole discretion; provided, that in no event shall Parent or Offer Sub purchase (or accept for purchase) any shares of SRH Common Stock pursuant to the Offer if the Merger shall not have occurred or concurrently occur. The Company and SRH agree that no shares of SRH Common Stock held by the Company, SRH or any of their respective Subsidiaries will be continuingtendered to Parent or Offer Sub pursuant to the Offer. Parent and Offer Sub will not, without the Purchaser shallprior written consent of SRH, as promptly as reasonably practicable following (i) decrease or change the execution form of this Agreement the consideration payable in the Offer, (but in any event no later than seven business days after ii) decrease the execution and delivery number of this Agreement)shares of SRH Common Stock sought pursuant to the Offer, 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”)iii) impose additional conditions to the Offer or change the Offer Conditions (provided, that Parent or Investor in its sole discretion may waive any such conditions and, in connection therewith, substitute a less restrictive condition) or (iv) make any other change in the terms or conditions of the Offer which is materially adverse to purchase for cash all the holders of the shares of SRH Common Stock Stock. Notwithstanding the foregoing, Parent and SRH may, without the consent of the Company or SRH, (x) extend the Offer, if at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the scheduled expiration date of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration any of the Offer Conditions shall not have been satisfied or waived, until such time as all conditions are satisfied or waived, (xi) extend the Offer for any period required by any statute, rule, regulation, interpretation or position of any Governmental Authority applicable to the Offer, and (xii) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent would otherwise be permitted under clauses (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”x) and (iixi) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement)this sentence. Subject to the Offer Conditions and the terms and conditions of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to Offer Sub to, accept for payment and pay for, all shares of SRH Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after the expiration of the Offer; provided, that Parent or Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but Sub shall not be obligated required to make payment for, or mail checks with respect to), without tendered shares of SRH Common Stock until the consent seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000.
(E) The following Section 7.15 shall be added to Article VII of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Original Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 2 contracts
Sources: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
The Offer. (a) Provided that Unless this Agreement shall not have has been terminated in accordance with Section 8.1 of this Agreement Article VII, Parent, Purchaser and none of the events set forth in Annex I Company shall have occurred use their reasonable best efforts to complete and be continuingfile the Offer Documents, as defined below, and Schedule 14D-9 and commence the Purchaser shall, Offer as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven fourteen days from the date hereof. The Offer shall be scheduled to expire at 5:00 p.m., New York City time on the 21st business days after day following commencement of the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder Offer (the “Exchange Act”"Initial Expiration Date")) . The Purchaser shall use reasonable best efforts to consummate the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser in accordance with its terms and to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer on as soon as legally permitted to do so under applicable law and shall pay for tendered Shares as soon as practical, subject to:
(i) the condition that pursuant to the Offer, there shall have been validly tendered and not withdrawn before the Offer expires the number of Shares which constitutes at least a majority of the outstanding Shares not beneficially owned by Parent or Purchaser immediately prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”) and "); and
(ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” A to this Agreement.
(b) The Offer shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued made by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms means of the Offer to Purchase (as defined below) and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of shall be subject to the Minimum Condition and the other conditions set forth in Annex I hereto A to this Agreement and shall reflect, as of any expiration date of the Offerappropriate, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the other terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waivedAgreement. The Purchaser expressly reserves the right to waive or modify increase the terms of the Offer, except that, without the prior written consent of the Company (such consent amount it offers to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable pay per Share in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such an increase, in each case in its sole discretion and without the consent of the Company. Without the prior written consent of the Special Committee, Parent will not:
(i) decrease the Offer Price;
(ii) change the number of Shares to be purchased in the Offer;
(iii) change the form of the consideration payable in the Offer;
(iv) amend or waive the Minimum Condition; or
(v) make any other change in the terms or conditions of the Offer which is adverse to the holders of Shares.
(c) If, on the Initial Expiration Date, all conditions to the Offer will not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date; provided, however, that the Offer shall not be extended beyond June 30, 2000. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(d) As soon as reasonably practicable on the date of commencement of the Offer, Parent shall file with the Securities and Exchange Commission (the "SEC") a combined Schedule TO and Schedule 13E-3 under cover of Schedule TO. (The combined Schedule TO and Schedule 13E-3, together with all exhibits and amendments, is collectively referred to as "Schedule TO.") The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the form of the related letter of transmittal (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, the 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 materially incorrect or misleading, and Parent and the 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 as and to the extent required by applicable law. The Company, the Special Committee and their respective counsel shall be given the opportunity to review and comment on the Offer Documents and any amendments to the Offer Documents before they are filed with the SEC. Parent and the Purchaser shall provide the Company, the Special Committee and their respective counsel with a copy of any written comments or telephonic notification of any oral comments from the SEC or its staff with respect to the Offer Documents promptly after the comments are received.
Appears in 1 contract
Sources: Merger Agreement (Boise Cascade Office Products Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 10.1 and (ii) none of the events set forth in Annex I hereto shall have occurred or be existing and not have been waived, Merger Subsidiary shall, not later than five business days from the first public announcement of the execution of this Agreement, commence the Offer. Each Share (including the associated Right) accepted by Merger Subsidiary in accordance with the Offer shall be continuingpurchased for $1.17, net to the Purchaser shallseller in cash, without interest. The Offer shall be subject to the conditions (i) that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least two thirds of the total number of outstanding Shares, assuming the exercise of all outstanding warrants, options, rights and convertible securities (if any) (other than the Rights, Parent's option to acquire Company Common Stock pursuant to the Stock Option Agreement, to the extent not then exercised and options cancelled pursuant to Section 3.4(a) hereof) and the issuance of all Shares that the Company is obligated to issue pursuant thereto (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Stock Condition"), (ii) that Parent shall have simultaneously accepted for payment Notes in each of the Notes Tender Offers, and (iii) that the other conditions set forth in Annex I hereto shall have been satisfied or waived. Parent and Merger Subsidiary expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of the Offer; provided that, without the written consent of the Company, no change may be made which changes the form or amount of consideration to be paid (other than by adding consideration), imposes conditions to the Offer in addition to those set forth in Annex I or changes or waives the Minimum Stock Condition or amends any other term of the Offer in a manner materially adverse to the holders of Shares. If on the initial scheduled expiration date of the Offer, which shall be no earlier than 20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, Merger Subsidiary may, from time to time, in its sole discretion, extend the expiration date; provided that without the prior written consent of the Company, Merger Subsidiary may not extend the Offer beyond March 15, 2002 (except that Parent may extend the expiration date of the Offer after March 15, 2002 as required to comply with any rule, regulation or interpretation of the SEC). Subject to the terms and conditions of the Offer, Parent shall cause Merger Subsidiary to accept for payment and pay for, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution expiration of the Offer, all Shares validly tendered and delivery not withdrawn pursuant to the Offer. In addition, Merger Subsidiary may extend the Offer after the acceptance of this Agreement), commence (within the meaning Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-2 14d-11 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) , of not more than 20 business days to meet the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant objective (which is not a condition to the Offer on or prior to the expiration of the Offer and not withdrawn shall Offer) that there be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shalltendered, in accordance with the terms of the Offer, consummate prior to the expiration date of the Offer (as so extended) and accept for payment not withdrawn a number of Shares, which together with Shares then owned by Parent and pay forMerger Subsidiary, represents at least 90% of the Fully Diluted Shares.
(b) As soon as practicable after the date of this Agreement, and not later than five business days from the first public announcement of the execution of this Agreement, Parent shall, and Parent shall cause the Purchaser to accept for payment and pay forMerger Subsidiary to, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance file with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“the "SEC”") a Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto and any other filings pursuant to which the staff thereof applicable Offer will be made, the "Offer Documents"). Parent, Merger Subsidiary and the Company each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise Documents as so corrected to be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together filed with the Common Stock then owned by Parent SEC and the Purchaser, represents less than ninety percent (90%) to be disseminated to holders of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with the SEC. In addition, Parent and Merger Subsidiary agree to provide the Company and its counsel with any comments, whether written or oral, that Parent or Merger Subsidiary 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 increase, in each case in its sole discretion and without the consent of the Companycomments or other communications.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VIII and none of the events or conditions set forth in Annex I A shall have occurred and be continuingexisting and shall not have been waived in writing by Parent or Merger Sub (the conditions set forth in Annex A, the Purchaser “Tender Offer Conditions”), Merger Sub shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement)Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Priceon August 31, 2007. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without Without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall (i) amend or waive satisfaction of the Minimum Condition, (ii) not decrease the Offer Price, (iii) Price or change the form of consideration payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth Offer in Annex I in any manner adverse addition to the holders of Tender Offer Conditions, waive or amend the shares of Common Stock, Minimum Condition or (vii) amend any other term of the Offer in a manner that which is materially adverse to the holders Company Shareholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any of the Tender Offer Conditions, other than the Minimum Condition. The Company agrees that no shares of Company Common Stock. Notwithstanding Stock held by the foregoingCompany or any of its Subsidiaries will be tendered in the Offer.
(b) Merger Sub shall, and Parent shall cause Merger Sub to, file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the Purchaser may (but “Offer Documents”) and, subject to the Company’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the U.S. federal securities Laws. Parent and Merger Sub agree that the Offer Documents shall comply in all material respects with the applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company Shareholders and on the Acceptance Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be obligated to)stated therein or necessary in order to make the statements therein, without the consent in light of the circumstances under which they were made, not misleading, except that no covenant, agreement, representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company extend for inclusion or incorporation by reference in the Offer (x) beyond Documents. The Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Initial Expiration Date from time Offer Documents if and to timethe extent that it shall have become false or misleading in any material respect, for such period or periods of time as the Purchaser reasonably believes are and Parent further agrees to take all steps necessary to cause the conditions Offer Documents as so corrected to be satisfied iffiled with the SEC and disseminated to the Company Shareholders to the extent required by applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b). The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents and any amendments thereto in advance of filing with the SEC or dissemination to the Company Shareholders, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall (i) provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent or Merger Sub may receive from the SEC or its staff (the “SEC Staff”) with respect to the Offer as promptly as practicable after the receipt thereof, (ii) consult in good faith with the Company and its counsel prior to responding to any such comments, and (iii) provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of Parent and Merger Sub or their counsel.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the Initial end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g) (3) under the Exchange Act) (the “Expiration Date”), any conditions to unless Merger Sub shall have extended the period of time for which the Offer shall not have been satisfied is open pursuant to, and in accordance with, the following provisions of this sentence or waived (as may be required by applicable Law, in which event the term “Initial Expiration Date” shall mean the latest time and date at which as the Offer, as so extended by may expire; provided, however, that Merger Sub shall have the Purchaserright, shall so expire); provided thatin its sole discretion, but not the Purchaser shall, upon the written request of the Company, obligation to (i) extend the Offer for one or more periods of not more than five Business Days each if, at the scheduled Expiration Date, any of the Tender Offer Conditions shall not have been satisfied or waived; or (ii) if all of the Tender Offer Conditions are satisfied but the number of shares of Company Common Stock that have been validly tendered and not withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent, is less than 90% of the outstanding shares of Company Common Stock, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to exceed an aggregate of ten twenty (1020) Business Days if, as to acquire outstanding shares of any expiration date, all of Company Common Stock. Merger Sub shall extend the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or of the staff thereof Staff applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
Sources: Merger Agreement (Rare Hospitality International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article 8 and none of the events set forth in Annex I ANNEX A hereto shall have occurred and be continuing, the Parent shall cause Purchaser shallto, as promptly as reasonably practicable following the execution of this Agreement (but practicable, and, in any event no later than seven business days after event, within ten (10) Business Days of the execution and delivery of this Agreement)date hereof, commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")) the Offer to purchase for cash any and all of the shares of Common Stock outstanding Shares, at a price per Share equal to the Offer Price, net to the seller in cash, without interest, subject to reduction for any applicable withholding taxes and, if such payment is to be made other than to the registered holder, any applicable stock transfer or other similar taxes payable by such holder. The obligations 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 and ANNEX A hereto. The initial expiration date of the Offer shall be the twentieth Business Day from and after the date the Offer is commenced as determined in accordance with Rule 14d-2(a) under the Exchange Act (the "INITIAL EXPIRATION DATE"). The obligation of Purchaser to accept for payment payment, purchase and to pay for any shares of Common Stock Shares validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to the satisfaction of (i) there being the condition that at least a majority of the shares of Company Common Stock outstanding on a fully-diluted basis assuming the exercise of all options, warrants, rights and convertible securities outstanding on the date the Offer expires (taking into account any shares of Company Common Stock owned by Parent or Purchaser or any affiliate of Parent or Purchaser on the date such Shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”"MINIMUM CONDITION") and (ii) the other conditions set forth in Annex I ANNEX A hereto. “Fully-Diluted Basis” shall mean; provided, as of any datehowever, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive any of the conditions to the Offer (other than the Minimum Condition) and to make any change in the terms or conditions of the Offer (other than the Minimum Condition) in its sole discretion, subject to Section 1.01(b).
(b) Purchaser expressly reserves the right to modify the terms of the Offer; provided, except thathowever, that without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser shall will (i) amend or waive satisfaction of decrease the Minimum ConditionOffer Price, (ii) decrease the Offer Pricenumber of Shares sought in the Offer, (iii) change the form of consideration payable in the Offer, (iv) decrease impose conditions to the number of shares of Common Stock sought Offer in addition to the OfferMinimum Condition and the other conditions set forth in ANNEX A, (v) impose additional conditions except as provided below or required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the conditions set forth Offer in Annex I in any a manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer Shares. Notwithstanding anything in a manner that is materially adverse this Agreement to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)contrary, without the consent of the Company Company, Purchaser shall have the right to extend the Offer (x) beyond the Initial Expiration Date in the following events: (i) from time to time, for such period but in no event later than the date that is ten (10) Business Days from the Initial Expiration Date (or periods extended expiration date of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied Offer, if applicable), if, at the Initial Expiration DateDate (or extended expiration date of the Offer, any if applicable), one or more of the conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerwaived, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but until such conditions are reasonably capable satisfied or waived; provided, however, that the expiration date of being satisfied in such period, the Offer may not extend beyond the 60th day after commencement of the Offer; (yii) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and or any period required by applicable Law (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) as hereinafter defined); or (yiii) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Offer are satisfied or earlier waived, waived but the number of shares of Common Stock Shares validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents withdrawn is less than ninety percent (90%) of the then outstanding shares number of Common Stock on a Fully-Diluted BasisShares; provided, however, that Purchaser’s decision to extend the expiration date of the Offer in may not extend beyond the case of this clause (z) shall constitute a waiver 60th day after the commencement of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business DaysOffer. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock Shares pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “"subsequent offering period” " in accordance with Rule 14d-11 promulgated under the Exchange Act Act. Upon the satisfaction or waiver of all the conditions to the Offer and subject to the terms and conditions of this Agreement, Purchaser will accept for payment, purchase and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer.
(c) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a “Subsequent Offering Period”Tender Offer Statement on Schedule TO with respect to the Offer (together with any amendments or supplements thereto, the "SCHEDULE TO"), which shall contain or incorporate by reference the offer to purchase and forms of the related letter of transmittal and such other ancillary documents and instruments pursuant to which the Offer will be made (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). In addition, the Parent and Purchaser may increase agree that the Offer Price (but not change any other condition Documents will comply as to form and content in all material respects with the applicable provisions of the federal securities Laws and, on the date filed with the SEC and on the date first published, sent or given to the Offer) and extend 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 Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Parent, Purchaser and the Company each agree to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect and to supplement the information provided by it 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. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to be disseminated to holders of Shares of Company Common Stock, in each case as and to the extent required by law in connection applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with such increasethe SEC. Parent and Purchaser agree to provide to the Company and its counsel any comments or other communications which Parent, in each case in its sole discretion and without Purchaser or their counsel may receive from the consent staff of the CompanySEC with respect to the Offer Documents promptly after receipt thereof, and Parent and Purchaser shall consult with and provide to the Company and its counsel a reasonable opportunity to review and comment on the response of Purchaser and Parent prior to responding to the SEC.
(d) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the conditions of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallAgreement, as promptly as reasonably practicable following the execution of this Agreement (practicable, but in any no event no later than seven five business days after the execution and delivery date of the public announcement of this Agreement), Sub shall, and Rexam shall cause Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations promulgated thereunder of the Securities and Exchange Commission (the “Exchange Act”"SEC")) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Sub to, and of Rexam to cause Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer on or prior are subject to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any Exhibit A. The initial expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) 20th business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) day following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”)Offer. The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Sub shall not (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum ConditionOffer, (ii) decrease reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, Offer or (vi) otherwise amend any of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Sub may, without the consent of the Company Company, (A) extend the Offer (x) beyond the Initial Expiration Date from time to timeOffer, for such period one or more periods of time as the Purchaser that Sub reasonably believes are necessary to cause the conditions of the Offer set forth hereto to be satisfied ifsatisfied, if at the Initial Expiration Date, any conditions to scheduled expiration date of the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) to Sub's obligation to purchase shares of Annex I (other than subparagraph (c) thereof) Company Common Stock are not satisfied, but until such time as such conditions are reasonably capable of being satisfied in such period, or waived or (yB) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer Offer. Rexam and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration Sub agree that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment Offer are not satisfied on any scheduled expiration date of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock Offer then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser Sub shall extend the Offer for up one or more periods of time that Sub reasonably believes are necessary to ten (10) Business Days. In cause the event the Minimum Condition is satisfied and the Purchaser purchases the shares conditions of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but set forth hereto to be satisfied from time to time until such conditions are satisfied or waived, provided that Sub shall not change any other condition be required to the Offer) and extend the Offer to the extent required by law in connection with such increasebeyond October 25, in each case in its sole discretion and 2000. Sub may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") following its acceptance for payment of shares of Company Common Stock in the Offer. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Rexam shall cause Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Rexam and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Rexam and Sub agree that the Offer Documents shall comply as to form in all material respects with the Exchange Act, and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Rexam or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Rexam, Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Rexam and Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Rexam and Sub shall provide the Company and its counsel in writing with any written comments (and orally, any oral comments), Rexam, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Rexam shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rexam Acquisition Subsidiary Inc)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 8.1 of this Agreement and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex I shall have occurred and be continuing, the Purchaser shallhereto, as promptly as reasonably practicable after the date hereof following the execution public announcement of the terms of this Agreement (but in any no event no later than seven business days five Business Days after the execution and delivery of this Agreementdate hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder an offer (the “Exchange Act”)"OFFER") the Offer to purchase for cash all of the outstanding shares of Company Common Stock at a price for each share of Company Common Stock of $50, net to the Offer Priceseller in cash, and a number of shares of Parent Common Stock equal to the Exchange Ratio. The obligations Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or Offer, prior to the expiration date of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that withdrawn, a number of shares of Company Common Stock whichthat, together with the shares of Company Common Stock then beneficially owned by the Parent or the Purchaserand/or Merger Sub, represents at least eighty percent (80%) two-thirds of the shares of Company Common Stock outstanding on a Fullyfully-Diluted Basis diluted basis (the “Minimum Condition”"MINIMUM CONDITION") and (ii) to the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right to waive or modify any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer, except that, without ; provided that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, and (ii) decrease the Offer Price, (iii) no change may be made that changes the form of consideration payable in to be paid, decreases the Offer, (iv) decrease price per share of Company Common Stock or the number of shares of Company Common Stock sought in the Offer, (v) impose additional imposes conditions to the Offer, (vi) amend any of the conditions Offer in addition to those set forth in Annex I in I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (which shall be the 20th Business Day after the commencement of the Offer) or makes any manner other change which is adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company Company, Merger Sub shall have the right to extend the Offer (xi) beyond the Initial Expiration Date from time to timefor one or more periods (not in excess of 10 Business Days each) but in no event ending later than September 30, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied 2000 if, at the Initial Expiration Datescheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerwaived, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but until such conditions are reasonably capable of being satisfied in such period, or waived and (yii) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer or any period required by applicable law. If any of the conditions to the Offer is not satisfied or waived on any scheduled expiration date of the Offer, at the request of the Company, Parent shall cause Merger Sub to, and (z) Merger Sub shall, extend the Offer, if such condition or conditions could reasonably be expected to be satisfied, from time to time until such conditions are satisfied or waived; provided that Merger Sub shall not be required to extend the Offer beyond September 30, 2000. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. If Merger Sub does not accept for payment the shares of Company Common Stock in the Offer on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest initial expiration that would otherwise be permitted under date of the Offer by virtue of the failure of any of the regulatory conditions to the Offer specified in clause (xi)(B) of the preamble to Annex I or clauses (c) or (yd) of this sentenceAnnex I to be satisfied, ifParent and Merger Sub hereby agree to pay to the holders of shares of Company Common Stock cash interest at a rate of 8.00% per annum (calculated on the basis of a 365 day calendar year) on the $75 per share offer consideration from and after the initial expiration date of the Offer until the acceptance for payment of shares of Company Common Stock validly tendered and not withdrawn in the Offer. "EXCHANGE RATIO" (as the same may be adjusted pursuant to Section 4.01(d)) shall be equal to (i) $25 divided by the Average Price (as defined below), if the Average Price is greater than or equal to $34.00; or (ii) .7353, if the Average Price is less than $34.00. "AVERAGE PRICE" means the average (rounded to the nearest 1/10,000) of the volume weighted averages (rounded to the nearest 1/10,000) of the trading prices of Parent Common Stock on the NYSE, as reported by Bloomberg Financial Markets (or such expiration dateother source as the parties shall agree in writing), for the 15 Trading Days randomly selected by lot by Parent and the Company together from the 30 consecutive Trading Days ending on the third Trading Day immediately preceding the date on which all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not hereto have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyor waived.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall9.1, as promptly as reasonably practicable following the execution of this Agreement (possible but in any no event no later than seven five (5) business days after the public announcement of the execution hereof by the parties, Parent and delivery of this Agreement), GP shall cause Acquisition 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 amended (the “"Exchange Act”")) , the Offer Offer; and to purchase for cash all of cause Acquisition to use its best efforts to consummate the shares of Common Stock at the Offer PriceOffer, including, without limitation, engaging an information agent in connection therewith. The obligations of the Purchaser to Acquisition shall accept for payment issued and to pay for any outstanding shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration common stock, $0.001 par value of the Offer Company (individually a "Share" and not withdrawn shall be subject to (icollectively, the "Shares") there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date associated Rights which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock been validly tendered and not withdrawn pursuant to the Offer promptly after at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”"Minimum Stock Condition") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I heretoArticle 7. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right to waive or modify any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that Parent, GP and Acquisition agree that no change may be made without the prior written consent of the Company (such consent to be authorized by which decreases the board of directors of the Company or a duly authorized committee thereof)Per Share Amount, neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change which changes the form of consideration payable to be paid in the Offer, (iv) decrease which reduces the maximum number of shares of Common Stock sought to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (v) impose additional on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingShares, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any which imposes conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not addition to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions those set forth in clause Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (ii) except that Acquisition may extend the expiration date of Annex I (other than subparagraph (c) thereof) are not satisfiedthe Offer beyond September 30, but such conditions are reasonably capable of being satisfied in such period, (y) for any period 1999 as required by to comply with any rule, regulation, interpretation, regulation or position interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (“SEC”including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by Acquisition at any time to exercise any of the staff thereof applicable foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. The Per Share Amount shall be paid net to the Offer seller in cash, less any required withholding of taxes, upon the terms and (z) on one or more occasions (all subject to such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all conditions of the conditions to Offer. The Company agrees that no Shares held by the Purchaser’s obligation to accept payment Company or any of its subsidiaries will be tendered in the Common Stock are satisfied or earlier waivedOffer.
(b) As soon as practicable after the date hereof, but Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the number of shares of Common Stock validly tendered Securities and Exchange Commission (and not withdrawnthe "SEC") pursuant a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the Common Stock then owned by "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the PurchaserCompany and its counsel with any comments which Parent, represents less than ninety percent (90%) Acquisition or their counsel may receive from the SEC or the staff of the outstanding shares SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of Common Stock applicable federal securities laws. The information provided and to be provided by Parent, GP and Acquisition for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a Fully-Diluted Basis; material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful no representation or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii)warranty is made by Parent, (c)(iv), GP or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance Acquisition with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.respect to
Appears in 1 contract
The Offer. (a) Provided that (i) Unless this Agreement shall not have been terminated pursuant to Article IX and (ii) provided that the Company shall have complied in all material respects with its obligations to provide the information it is required to provide to Parent and Merger Sub in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I 1.2, Merger Sub shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and Act) the rules and regulations promulgated thereunder Offer for the Company Common Shares in exchange for the Common Shares Consideration (the “Exchange ActCommon Share Offer Consideration”), the Company Series A Shares in exchange for the Series A Consideration (the “Series A Offer Consideration”) and the Company Series B Shares in exchange for the Series B Consideration (the “Series B Offer Consideration”) as promptly as reasonably practicable, but in no event later than 25 Business Days following the date of this Agreement.
(b) The obligation of Merger Sub (and Parent’s obligation to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser cause Merger Sub) to accept for payment exchange, and to exchange and pay the Common Share Offer Consideration for any shares of the Company Common Stock validly Shares, the Series A Offer Consideration for the Company Series A Shares and the Series B Offer Consideration for the Company Series B Shares tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there being shall be validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant prior to the Offer promptly after the scheduled expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall as it may be made by means of an offer to purchase (the “Offer to Purchase”extended hereunder) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, a number of Company Shares that, together with the Common Stock then any Company Shares directly or indirectly owned by Parent and or Merger Sub, would represent at least 90% of all Company Shares outstanding at the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) Acceptance Time (excluding any willful shares held, directly or intentional breach of any material obligation of indirectly, by the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock as required pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.Article 18
Appears in 1 contract
Sources: Transaction Agreement (Global Blue Group Holding AG)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article 11 and none of the events set forth in Annex I A hereto shall have occurred or be existing, Merger Subsidiary shall, and be continuing, the Purchaser shallParent shall cause Merger Subsidiary to, as promptly as reasonably practicable following after the execution of this Agreement date hereof (but in any no event no later than seven business days the fifth Business Day after the execution and delivery public announcement of the terms of this Agreement), commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 19341934 Act), as amended, and the rules and regulations promulgated thereunder an offer (the “Exchange Act”)"Offer") the Offer to purchase for cash (x) any and all of the outstanding shares of Common Company Class A Stock at for a purchase price of $64.00 per share (the "Class A Offer Price") and (y) any and all (subject to the Minimum Condition (as defined below)) of the outstanding shares of Company Class B Stock for a purchase price of $6.40 per share (the "Class B Offer Price" and, together with the Class A Offer Price, the "Offer Price"), in each case, net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer Priceshall be the twentieth Business Day from and after the date the Offer is commenced (the "Initial Expiration Date"). The obligations obligation of the Purchaser Merger Subsidiary to accept for payment payment, purchase and to pay for any shares of Common Company Stock validly tendered pursuant to the Offer on or prior shall be subject, except as provided in Section 2.01(b), only to the expiration satisfaction of the Offer and not withdrawn shall be subject to (i) there being the condition that at least 45,815,000 shares of Company Class B Stock (subject to adjustment for stock splits, stock dividends, recapi- talizations and similar events) (less any shares of Company Class B Stock owned by Parent or Merger Subsidiary or any Affiliate of Parent or Merger Subsidiary on the date such shares are purchased pursuant to the Offer) have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”") and (ii) the other conditions set forth in Annex I A hereto. “Fully-Diluted Basis” shall mean; provided, as of any datehowever, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Subsidiary expressly reserves the right to waive or modify any of the conditions to the Offer (other than the Minimum Condition) and to make any change in the terms or conditions of the Offer (other than the Minimum Condition) in its sole discretion, subject to Section 2.01(b). Notwithstanding the previous sentence, Merger Subsidiary 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 Stock pursuant to the Offer), except that, without (y) Parent has irrevocably exercised or irrevocably committed to exercise the Option and (z) the shares of Company Stock acquired pursuant to the Offer and through such Option exercise would satisfy the Minimum Condition (such event being referred to as a "Constructive Satisfaction of the Minimum Condition").
(b) Without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser shall Merger Subsidiary will (i) amend decrease the price per share of Company Class A Stock or waive satisfaction of Company Class B Stock payable in the Minimum ConditionOffer, (ii) decrease the Offer Pricenumber of shares of Company Class A Stock or Company Class B Stock sought in the Offer, (iii) change the form of consideration payable in the Offer, (iv) decrease impose conditions to the number of shares of Common Stock sought Offer in the Offeraddition to those set forth in Section 2.01(a) and Annex A, (v) impose additional conditions except as provided below or required by any rule, regulation, interpretation or position of the SEC applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the conditions set forth Offer in Annex I in any a manner adverse to the holders of the shares of Common Stock, Company Class A Stock or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Company Class B Stock. Notwithstanding anything in this Agreement to the foregoing, the Purchaser may (but shall not be obligated to)contrary, without the consent of the Company Company, Merger Subsidiary shall have the right to extend the Offer (x) beyond the Initial Expiration Date in the following events: (i) from time to time, for such period or periods of time as but in no event later than the Purchaser reasonably believes are necessary to cause date which is 60 days from the conditions to be satisfied Initial Expiration Date, if, at the Initial Expiration DateDate (or extended expiration date of the Offer, if applicable), any of the conditions to the Offer (other than the Minimum Condition to which this clause does not apply) shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerwaived, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but until such conditions are reasonably capable of being satisfied in such period, or waived; (yii) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and or any period required by applicable law; (ziii) on if all conditions to the Offer other than the Minimum Condition are satisfied or waived, for one or more occasions periods not to exceed ten (10) business days each (but no more than an aggregate of thirty (30) business days for all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) extensions); or (yiv) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Offer are satisfied or earlier waived, waived but the number of shares of Common each class of Company Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents withdrawn is less than ninety percent (90%) of the outstanding then out- standing number of shares of Common Stock on a Fully-Diluted Basis; providedeach class of Company Stock, howeverfor an aggregate period not to exceed twenty (20) business days (for all such extensions), provided that Purchaser’s decision Merger Subsidiary shall accept and promptly pay for all securities tendered prior to the date of such extension and shall waive any condition to the consummation of the Merger other than the condition in Section 10.01(c) that may fail to be satisfied during such extension. In addition, Parent and Merger Subsidiary agree that notwithstanding clause (iii) of the previous sentence, Merger Subsidiary may, and if requested by the Company shall, from time to time extend the Offer, if at the Initial Expiration Date (or any extended expiration date of the Offer, including pursuant to this sentence, if applicable), no conditions to the Offer other than the Minimum Condition, the HSR Condition (as defined in the case of this clause (zAnnex A) shall constitute a waiver of and/or the conditions set forth in clauses clause (da) and or clause (fb) of Annex A shall excuse performance by Merger Subsidiary under Annex A, until the earlier of ten (excluding any willful 10) business days after such previously scheduled expiration date or intentional breach of any material obligation March 31, 2001; provided that the Company will not make such a request where a Constructive Satisfaction of the Company) on Annex I Minimum Condition exists. Upon the prior satisfaction or waiver of all the conditions to the Offer and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) terms and conditions of this Agreement, ifMerger Subsidiary will, on and Parent will cause Merger Subsidiary to, accept for payment, purchase and pay for, in accordance with the Initial Expiration Date any terms of the events set forth in subparagraph (c) Offer, all shares of Annex I shall have occurred Company Stock validly tendered and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer. Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to accept for up to ten (10) Business Days. In the event the Minimum Condition is satisfied payment, and the Purchaser purchases the pay for, any shares of Common Company Stock that Merger Subsidiary becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(c) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance "Schedule TO") with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition respect to the Offer) . Parent and extend Merger Subsidiary agree that the Schedule TO will comply as to form and content in all material respects with the applicable provisions of the federal securities laws, 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, and will contain the offer to purchase and form of the related letter of transmittal (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and the Company each agree to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect and 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. Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and be disseminated to holders of shares of Company Stock, in each case, as and to the extent required by law in connection applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with such increasethe SEC. Parent and Merger Subsidiary agree to provide to the Company and its counsel any comments or other communications which Parent, in each case in its sole discretion and without Merger Subsidiary or their counsel may receive from the consent Staff of the CompanySEC with respect to the Offer Documents promptly after receipt thereof.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I A hereto shall have occurred and or be continuingcontinuing (other than the requirements set forth in clauses (i)-(iv) of Annex A), Purchaser shall commence the Purchaser shall, Offer as promptly as reasonably practicable following after the execution of this Agreement (date hereof, but in any no event no later than seven 5 business days after the execution and delivery initial public announcement of this Agreement), Purchaser's intention 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 for cash all of the shares of Common Stock at the Offer PriceOffer. The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration satisfaction of each of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I A hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify any such condition, to increase the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration price per Share payable in the Offer, (iv) decrease and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of shares of Common Stock sought Shares to be purchased in the Offer, (v) impose additional Offer or which imposes conditions to the Offer, (vi) amend any of the conditions Offer in addition to those set forth in Annex I A; and provided further that the condition in any manner adverse to the holders clause (iv) of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser Annex A may (but shall not be obligated to), waived by Purchaser nor may any change be made to such condition without the consent of the Company Company. Purchaser shall from time to time extend the Offer (x) beyond the Initial Expiration Date from time to timescheduled 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 or periods of time as to which the Purchaser Company shall reasonably believes are necessary to cause the conditions to be satisfied agree) if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which scheduled expiration of the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are to Purchaser's obligation to accept for payment Shares shall not satisfiedbe satisfied or waived. In addition, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Offer are satisfied or earlier waived, waived but the number of shares of Class A Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the shares of Class A Common Stock then owned held by Parent and the Purchaser, represents if any, is less than ninety percent (90%) of the then-outstanding number of shares of Class A Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision (assuming the conversion by Parent of all shares of Class B Common Stock to extend Class A Common Stock as contemplated by the Offer in the case last sentence of this clause (z) shall constitute a waiver Section 1.01(a)), then upon the applicable expiration date of the conditions set forth Offer, Purchaser shall provide "subsequent offering periods," as such term is defined in, and in clauses accordance with, Rule 14d-11 under the Exchange Act, for an aggregate period not to exceed twenty (d20) business days (for all such extensions) and Purchaser shall (fA) give the required notice of such subsequent offering period and (excluding any willful or intentional breach B) immediately accept and promptly pay for all Shares tendered as of any material obligation such applicable expiration date. Subject to the terms of the CompanyOffer, Purchaser shall accept for payment and pay for all Shares at the earliest time at which it is permitted to do so under applicable law. Purchaser shall take all necessary action to cause all shares of Class B Common Stock so accepted to be converted to shares of Class A Common Stock as promptly as practicable on the 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) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In additionThe Per Share Amount shall, subject to applicable withholding of Taxes (as hereinafter defined), be net to the provisions of Section 8.1(b)(iii) of this Agreementseller in cash, if, on upon the Initial Expiration Date any terms and subject to the conditions of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Offer. Purchaser shall extend pay for all Shares validly tendered and not withdrawn promptly following the Offer acceptance of Shares for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable 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 that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(c) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance "SCHEDULE TO") with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and extend 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 that 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 law in connection applicable federal securities laws to give effect to the Offer. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with such increase, in each case in its sole discretion and without the consent of the CompanySEC.
Appears in 1 contract
The Offer. (a) Provided Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement its terms pursuant to Article VII hereof and none of the events set forth in Annex I paragraphs (a) through (e) of Exhibit A hereto shall have occurred and or be continuing, the Purchaser shallexisting, as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven six business days after the execution and delivery date of the public announcement of this Agreement)Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations promulgated thereunder of the Securities and Exchange Commission (the “Exchange Act”"SEC")) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer on or prior are subject to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any Exhibit A. The initial expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) 20th business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) day following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”)Offer. The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall not (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum ConditionOffer, (ii) decrease reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, Offer or (vi) otherwise amend any of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser Merger Sub may (but shall not be obligated to), without the consent of the Company Company, (A) extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period one or more periods of time as (which, without the Purchaser written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied ifsatisfied, if at the Initial Expiration Date, any conditions to scheduled expiration date of the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) to Merger Sub's obligation to purchase shares of Annex I (other than subparagraph (c) thereof) Company Common Stock are not satisfied, but until such time as such conditions are reasonably capable of being satisfied in such periodor waived, (yB) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and or (zC) extend the Offer on one or more occasions (all such occasions aggregating for an aggregate period of not more than twenty Business Days) beyond ten business days if the latest expiration Minimum Tender Condition has been satisfied but fewer than 90% of the Company Common Shares have been validly tendered and not withdrawn. Parent and Merger Sub agree that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment Offer are not satisfied on any scheduled expiration date of the Common Stock Offer then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offerprovided that, together with the Common Stock then owned by so long as Parent and the PurchaserMerger Sub shall have complied with their obligations under this Agreement, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 7.01(b)). Merger Sub may, with the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation written consent of the Company) on Annex I and of its right , elect to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend provide a subsequent offering period for the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under of the Securities Exchange Act of 1934, as amended (a “Subsequent Offering Period”the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. In addition, On the Purchaser may increase terms and subject to the conditions of the Offer Price (but and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not change any other condition withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer) , Parent and extend Merger Sub shall file with the Offer SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by law applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in connection the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with such increasethe SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case in as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its sole discretion counsel shall be given reasonable opportunity to review and without comment upon the consent Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Pathogenesis Corp)
The Offer. (a) Provided that this The Merger Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement provides that, upon the terms and none of subject to the events set forth in Annex I shall have occurred and be continuingconditions thereof, Purchaser will commence the Purchaser shall, Offer as promptly as reasonably practicable following the execution of this Agreement (practicable, but in any no event no later than seven five business days after the execution and delivery initial public announcement of this Agreement), Purchaser's intention 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 for cash all of the shares of Common Stock at the Offer PriceOffer. The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and certain other conditions that are described in "The Tender Offer - 9. Conditions to the Offer." Purchaser has agreed that no change in the Offer may be made which waives the Minimum Condition, and no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration, which reduces the maximum number of Shares to be purchased in the Offer, which makes changes to the Offer which are otherwise adverse to the Company or the Public Stockholders or which imposes conditions to the Offer in addition to those set forth in "The Tender Offer - 9. Conditions to the Offer" hereof without the prior consent of the Company. The Merger. The Merger Agreement provides that, upon the terms and subject to the conditions thereof, and in accordance with Delaware Law, at the Effective Time, Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Purchaser will cease and the Company will continue as the Surviving Corporation of the Merger. At the Effective Time, by virtue of the Merger and without any action on the part of Purchaser, the Company or holders of any Shares, (a) each Share issued and outstanding immediately prior to the expiration Effective Time (other than any Shares held in the treasury of the Offer Company, or owned by Purchaser, any Affiliate of Purchaser or any direct or indirect subsidiary of the Company and any Shares which are held by stockholders who have not withdrawn voted in favor of the Merger or consented thereto in writing and who shall have demanded properly in writing appraisal for such Shares in accordance with Delaware Law) shall be subject cancelled and converted automatically into the right to receive $7.875 per Share in cash or such higher price paid in the Offer (the "Merger Consideration") payable, after reduction for any required Tax withholding, without interest, to the holder of such Share, upon surrender, in the manner provided in the Letter of Transmittal, of the certificate that formerly evidenced such Share; (b) each Share held in the treasury of the Company and each Share owned by Purchaser, any Affiliate of Purchaser or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time shall be canceled without any conversion thereof and no payment or distribution will be made with respect thereto; and (c) each share of Class A Common Stock, par value $.01 per share, of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Class A Common Stock, par value $.50 per share, of the Surviving Corporation, and each share of Class B Common Stock, par value $.01 per share, of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Class B Common Stock, par value $.50 per share, of the Surviving Corporation. The Merger Agreement provides that the directors of Purchaser immediately prior to the Effective Time will be the initial directors of the Surviving Corporation and that the officers of the Company immediately prior to the Effective Time will be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified. The Merger Agreement provides that, at the Effective Time, the Certificate of Incorporation of the Company restated in the form attached to the Merger Agreement will be the Certificate of Incorporation of the Surviving Corporation. The Merger Agreement also provides that the By-laws of the Company, as in effect immediately prior to the Effective Time, will be the By-laws of the Surviving Corporation. The Merger Agreement provides that each Company Stock Option outstanding at the Effective Time under the Company Stock Option Plan shall be canceled by the Company immediately prior to the Effective Time, and each holder of a canceled Company Stock Option shall be entitled to receive at the Effective Time or as soon as practicable thereafter from the Company in consideration for the cancellation of such Company Stock Option an amount equal to the product of (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Shares previously subject to such Company Stock whichOption, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanexcess, as of any dateif any, the number of the shares of Common Stock issued and outstanding, together with Merger Consideration over the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a price per share basis at or below of Shares previously subject to such Company Stock Option, which shall be paid in cash, after reduction for applicable tax withholding. The Merger Agreement provides that notwithstanding any provision of the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant Merger Agreement to the Stock Option Agreement). Subject contrary, Shares that are outstanding immediately prior to the terms Effective Time and which are held by stockholders who shall have not voted in favor of the Offer Merger or consented thereto in writing and this Agreement, and who shall have demanded properly in writing appraisal for such Shares in accordance with Section 262 of Delaware Law shall not be converted into or represent the prior satisfaction or waiver by right to receive the Parent or the Purchaser Merger Consideration. Such stockholders shall be entitled to receive payment of the Minimum Condition and the other conditions set forth in Annex I hereto as appraised value of any expiration date of the Offer, the Purchaser shall, such Shares held by them in accordance with the terms provisions of such Section 262, except that all Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such Shares under such Section 262 shall thereupon be deemed to have been converted into and to have become exchangeable for, as of the OfferEffective Time, the right to receive the Merger Consideration, without any interest thereon, upon surrender, in the manner provided in the Merger Agreement, of the certificate or certificates that formerly evidenced such Shares. Agreements of Purchaser and the Company. Pursuant to the Merger Agreement, the Company shall, if required by applicable law in order to consummate the Offer Merger, duly call, give notice of, convene and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares hold an annual or special meeting of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration its stockholders as soon as practicable following consummation of the Offer for the purpose of considering and taking action on the Merger Agreement and the transactions contemplated thereby (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable"Stockholders' Meeting"). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Merger Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree also provides that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)its fiduciary duties under applicable law as advised by independent counsel, the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, if the Minimum Condition shall not have been satisfied or and such condition shall have been waived by Purchaser, at the other conditions Stockholders' Meeting Purchaser will cause all Shares then owned by it and the Shares under its control to be voted in favor of the Offer described in Annex I have not been satisfied or earlier waivedMerger. The Merger Agreement provides that, notwithstanding the preceding paragraph, in the event that Purchaser expressly reserves shall acquire at least 90 percent of the right then outstanding Shares of each class, subject to waive or modify certain conditions, Purchaser and the terms Company agree to take all necessary and appropriate action to cause the Merger to become effective in accordance with Section 263 of Delaware Law as soon as reasonably practicable after such acquisition, without a meeting of the Company's stockholders. The Merger Agreement provides that the Company will, if required by applicable law, as soon as practicable following consummation of the Offer, except thatfile an information or proxy statement (the "Proxy Statement") with the under the Exchange Act, without and use best efforts to have the prior written consent Proxy Statement cleared by the Commission. Purchaser and the Company will cooperate with each other in the preparation of the Proxy Statement, and the Company will notify Purchaser of the receipt of any comments of the Commission with respect to the Proxy Statement. The Merger Agreement further provides that the Certificate of Incorporation of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in Article Eighth of the Certificate of Incorporation of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of ten years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by law. The Merger Agreement provides that the Company shall, to the fullest extent permitted under applicable law and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company (such consent collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to be authorized any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of ten years after the date hereof. The Merger Agreement provides that the Surviving Corporation shall use its best efforts to maintain in effect for six years from the Effective Time, if available, the current directors' and officers' liability insurance policies maintained by the board Company (provided that the Surviving Corporation may substitute therefor policies of directors of at least the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (isame coverage containing terms and conditions which are not materially less favorable) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions with respect to matters occurring prior to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted BasisEffective Time; provided, however, that Purchaser’s decision in no event shall the Surviving Corporation be required to extend expend pursuant to this provision: for the Offer in period beginning at the case Effective Time and ending three years thereafter, more than an amount per year equal to 300% of this clause current annual premiums (zthe "Current Annual Premiums") shall constitute a waiver paid by the Company for such insurance, and (ii) for the period beginning on the third anniversary of the conditions set forth in clauses (d) Effective Time and (f) (excluding any willful or intentional breach of any material obligation ending three years thereafter, more than an amount per year equal to 200% of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the CompanyCurrent Annual Premiums.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VIII hereof and none of subject to the events conditions set forth in Annex I shall have occurred and be continuing, Exhibit A hereto (the Purchaser shall"TENDER OFFER CONDITIONS"), as promptly as reasonably practicable following but in no event later than five business days after the execution date of the public announcement by Parent and the Company of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement"ANNOUNCEMENT DATE"), Sub shall, and Parent shall cause Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")) , for all the Offer to purchase for cash all of the outstanding shares of Company Common Stock at the Offer Price. The obligations obligation of Sub to, and of Parent to cause Sub to, commence the Purchaser to Offer and accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer on or prior are subject only to the expiration provisions of Article VIII and the Tender Offer and not withdrawn shall be subject to Conditions (i) there being validly tendered and not withdrawn prior to the final expiration any of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that which may be issued waived by the Company pursuant to warrantsSub in its sole discretion, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreementexcept as otherwise provided herein). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Sub shall not (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease reduce the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions subject to the Offer, (viii) amend any reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) modify or add to the Tender Offer Conditions, (iv) waive the Minimum Tender Condition (except that Sub may waive the Minimum Tender Condition if the failure of such condition to be satisfied results from the failure of the conditions set forth Principal Shareholders to validly tender any Subject Shares, as defined in Annex I in any manner adverse the Shareholder Agreement, prior to the holders expiration of the shares of Common StockOffer, or (viifrom the withdrawal of any Subject Shares prior to the expiration of the Offer) or amend any other term of the Offer in a any manner that is materially adverse to the holders of Company Common Stock or (v) except as provided below, extend the shares of Common StockOffer if all the Tender Offer Conditions have been satisfied. Notwithstanding Subject to the foregoingterms and conditions hereof, the Purchaser may Offer shall remain open until midnight, New York City time, on the date that is 20 business days after the Offer is commenced (but shall not be obligated towithin the meaning of Rule 14d-2 of the Exchange Act); PROVIDED, HOWEVER, that without the prior written consent of the Company extend Company, Sub may (A) if at the scheduled initial or any extended expiration date (whether extended pursuant to this clause (A) or otherwise) of the Offer (x) beyond any of the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Tender Offer Conditions shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Companywaived, extend the Offer for one up to five business days from such scheduled initial or more periods not to exceed an aggregate of ten (10) Business Days if, as of any extended expiration date, all of (B) extend the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“the "SEC”") or the staff thereof applicable to the Offer, (C) if at the scheduled initial or any extended expiration date of the Offer all the Tender Offer Conditions are satisfied and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days70% but less than 90% of the Fully Diluted Shares (as defined in Exhibit A) have been validly tendered and not withdrawn in the Offer, extend the Offer up to a maximum of 10 additional business days in the aggregate beyond the latest expiration date that would otherwise be permitted under clause (xA) or (yB) of this sentence and (D) extend the Offer for any reason for a period of not more than three business days beyond the latest expiration date that would otherwise be permitted under clause (A), (B) or (C) of this sentence, if, on such expiration date, all . On the terms and subject to the conditions of the conditions to the Purchaser’s obligation to Offer and this Agreement, Parent shall cause Sub to, and Sub shall, accept for payment of the Common Stock are satisfied or earlier waived, but the number of and pay for all shares of Company Common Stock validly tendered (and not withdrawnwithdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) pursuant On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the Common Stock then owned "OFFER DOCUMENTS"). Each of Parent, Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision Sub shall take all steps necessary to extend amend or supplement the Offer in Documents and to cause the case of this clause (z) shall constitute a waiver of Offer Documents as so amended or supplemented to be filed with the conditions set forth in clauses (d) SEC and (f) (excluding any willful or intentional breach of any material obligation of to be disseminated to the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then's shareholders, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law applicable Federal securities laws. Parent and Sub shall provide the Company and its counsel in connection writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such increasecomments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds sufficient to accept for payment, in each case in its sole discretion and without pay for, any and all shares of Company Common Stock that Sub becomes obligated to accept for payment, and pay for, pursuant to the consent of Offer. Parent and Sub shall comply with the Companyobligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
Appears in 1 contract
Sources: Merger Agreement (Tripoint Global Communications Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the conditions of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallAgreement, as promptly as reasonably practicable following the execution of this Agreement (practicable, but in any no event no later than seven five business days after the date of the execution and delivery of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act"). The obligation of Merger Sub to, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of Parent to cause Merger Sub to, commence the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to and accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanExhibit A (any of which may be waived by Merger Sub in --------- its sole discretion, as of any dateprovided that, without the number consent of the shares of Common Stock issued and outstandingCompany, together with the shares of Common Stock that Merger Sub may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of waive the Minimum Tender Condition (as defined in Exhibit A)) and to --------- the other conditions set forth in Annex I hereto as of any this Agreement. The initial expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) 20th business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) day following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”)Offer. The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by Company, Merger Sub shall not, except as provided in the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall next sentence: (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum Condition, Offer; (ii) decrease reduce the Offer Price, price per share of Company Common Stock to be paid pursuant to the Offer; (iii) modify or add to the conditions set forth in Exhibit A in any manner materially adverse to the holders of Company Common --------- Stock; (iv) extend the Offer; (v) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, ; or (vi) otherwise amend any of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Merger Sub may, without the consent of the Company (w) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock set forth herein or in Exhibit A are not satisfied, until such time as such conditions are satisfied or waived; (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or a period of not more periods not to exceed an aggregate of ten (10) Business Days if, as of any than 15 business days beyond the initial expiration date, all date of the conditions set forth in clause (ii) Offer, if on the date of Annex I (other such extension less than subparagraph (c) thereof) are 90% of the outstanding shares of Company Common Stock have been validly tendered and not satisfied, but such conditions are reasonably capable of being satisfied in such period, properly withdrawn pursuant to the Offer; (y) extend the Offer for any period required by applicable law, including any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) or the staff thereof SEC applicable to the Offer Offer; and (z) on one or more occasions (all such occasions aggregating extend the Offer for any reason for a period of not more than twenty Business Days) 10 business days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of Section 1.01(a). It is agreed that the conditions to the Purchaser’s obligation to accept payment Offer are for the benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the Common Stock are satisfied circumstances giving rise to any such condition (including any action or earlier waivedinaction by Parent or Merger Sub not inconsistent with the terms hereof). On the terms and subject to the conditions of the Offer and this Agreement, but the number of Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered (and not withdrawnwithdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) pursuant On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain, among other things, an offer to purchase and a related letter of transmittal and other ancillary documents (such Schedule 14D-l and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the Common Stock then owned by "Offer Documents"). Each of Parent and Merger Sub on the Purchaserone hand, represents less than ninety percent (90%) of and the outstanding shares of Common Stock Company on a Fully-Diluted Basis; providedthe other hand, however, that Purchaser’s decision to extend shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information is false or misleading in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then's stockholders, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law applicable Federal securities laws. Parent and Merger Sub shall promptly notify the Company and its counsel regarding any comments that Parent, Merger Sub or their counsel receive from the SEC or its staff with respect to the Offer Documents and shall promptly provide to the Company and its counsel copies of such written comments, if any. The Company shall cooperate with Parent and Merger Sub in connection responding to any comments received from the SEC with such increaserespect to the Offer Documents.
(c) Subject to the terms and conditions of this Agreement, in each case in its sole discretion and without Parent shall provide or cause to be provided to Merger Sub on a timely basis the consent funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the CompanyOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall9.1, as promptly as reasonably practicable following the execution of this Agreement (possible but in any no event no later than seven five (5) business days after the public announcement of the execution hereof by the parties, Parent and delivery of this Agreement), GP shall cause Acquisition 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 amended (the “"Exchange Act”")) , the Offer Offer; and to purchase for cash all of cause Acquisition to use its best efforts to consummate the shares of Common Stock at the Offer PriceOffer, including, without limitation, engaging an information agent in connection therewith. The obligations of the Purchaser to Acquisition shall accept for payment issued and to pay for any outstanding shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration common stock, $0.001 par value of the Offer Company (individually a "Share" and not withdrawn shall be subject to (icollectively, the "Shares") there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date associated Rights which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock been validly tendered and not withdrawn pursuant to the Offer promptly after at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”"Minimum Stock Condition") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I heretoArticle 7. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right to waive or modify any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that Parent, GP and Acquisition agree that no change may be made without the prior written consent of the Company (such consent to be authorized by which decreases the board of directors of the Company or a duly authorized committee thereof)Per Share Amount, neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change which changes the form of consideration payable to be paid in the Offer, (iv) decrease which reduces the maximum number of shares of Common Stock sought to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (v) impose additional on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingShares, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any which 7 imposes conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not addition to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions those set forth in clause Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (ii) except that Acquisition may extend the expiration date of Annex I (other than subparagraph (c) thereof) are not satisfiedthe Offer beyond September 30, but such conditions are reasonably capable of being satisfied in such period, (y) for any period 1999 as required by to comply with any rule, regulation, interpretation, regulation or position interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (“SEC”including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by Acquisition at any time to exercise any of the staff thereof applicable foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. The Per Share Amount shall be paid net to the Offer seller in cash, less any required withholding of taxes, upon the terms and (z) on one or more occasions (all subject to such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all conditions of the conditions to Offer. The Company agrees that no Shares held by the Purchaser’s obligation to accept payment Company or any of its subsidiaries will be tendered in the Common Stock are satisfied or earlier waivedOffer.
(b) As soon as practicable after the date hereof, but Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the number of shares of Common Stock validly tendered Securities and Exchange Commission (and not withdrawnthe "SEC") pursuant a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the Common Stock then owned by "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the PurchaserCompany and its counsel with any comments which Parent, represents less than ninety percent (90%) Acquisition or their counsel may receive from the SEC or the staff of the outstanding shares SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of Common Stock applicable federal securities laws. The information provided and to be provided by Parent, GP and Acquisition for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a Fully-Diluted Basis; material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that Purchaser’s decision no representation or warranty is made by Parent, GP or Acquisition with respect to extend information supplied by the Company or any of its stockholders for inclusion in the Offer Documents. The Company agrees that information provided by the Company or any of its subsidiaries for inclusion or incorporation in the case of this clause (z) Offer Documents shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, ifnot, on the Initial Expiration Date date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the events set forth circumstances under which they were made, not misleading. Parent, GP, Acquisition and the Company each agree promptly to correct any information provided by it for use in subparagraph (c) of Annex I the Offer Documents if and to the extent that such information shall have occurred become false or misleading in any material respect and Parent, GP and Acquisition further agree to take all steps necessary to cause the Offer Documents as so corrected to be continuing filed with the SEC and shall not have been waived by the Purchaser, thento be disseminated to holders of Shares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyapplicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven five business days after (as defined in Rule 14d-1(g)(3) promulgated by the execution United States Securities and delivery of this Agreement), commence Exchange Commission (within the meaning of Rule 14d-2 “SEC”) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”)) after the date of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer to purchase for cash all within the meaning of the shares applicable rules and regulations of Common Stock at the Offer PriceSEC. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer on or prior are subject to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any Exhibit A. The initial expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) 20th business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) day following the commencement of the Offer (within the meaning of determined using Exchange Act Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”14d-1(g)(3)). The Purchaser and the Parent agree that they shall Offer may not terminate be terminated prior to its scheduled expiration (as such expiration may be extended or withdraw the Offer unlessre-extended in accordance with this Agreement), at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described unless this Agreement is terminated in Annex I have not been satisfied or earlier waivedaccordance with Section 8.1. The Purchaser Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall not (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum ConditionOffer, (ii) decrease reduce the Offer Price, (iii) waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in a manner adverse to the holders of Company Common Stock, (v) extend the Offer (except as expressly provided below), (vi) change the form of consideration payable in the Offer, Offer or (ivvii) decrease otherwise amend the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Merger Sub may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and Offer. In addition, (zi) on one if at the initially scheduled or more occasions (all such occasions aggregating not more than twenty Business Days) beyond any extended expiration date of the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentenceOffer, if, on such expiration date, all any of the conditions to the Purchaser’s obligation Offer set forth in Exhibit A (other than any conditions which by their nature are to accept payment be satisfied at the closing of the Offer) are not satisfied or, if permitted, waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer in increments of not more than ten business days each until such time as such conditions are satisfied or waived; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date (as defined in Section 8.1(b)(i)); and (ii) if fewer than 90% of the issued and outstanding shares of Company Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) accepted for payment pursuant to the Offer, together with then Merger Sub may, and at the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation request of the Company) on Annex I , shall, and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date upon any such request of the events set forth in subparagraph (c) of Annex I Company, Parent shall have occurred and be continuing and shall not have been waived by the Purchasercause Merger Sub to, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide make available a “subsequent offering period” ”, in accordance with Rule 14d-11 promulgated by the SEC under the Exchange Act Act, of not less than ten business days (but in no event with an expiration date after November 13, 2009). On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. For the avoidance of doubt, the parties hereto agree that vested shares of Restricted Stock may be tendered in the Offer and be acquired by Parent or Merger Sub pursuant to the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Subsequent Offering PeriodOffer Documents”). In addition, The Company shall promptly provide Parent with all information relating to the Purchaser may increase Company that is required to be included in the Offer Price (but not change any other condition Documents, and hereby consents to the Offerinclusion of the recommendations of the Board of Directors of the Company (the “Company Board”) and extend the Special Committee of Independent Directors of the Company Board (the “Special Committee”) described in clauses (iii) and (iv) of the second sentence of Section 3.3(b) and clause (iii) of the first sentence of Section 3.3(b) in the Offer Documents. Parent and Merger Sub agree that the Offer Documents shall comply in all material respects with the requirements of applicable Federal securities laws and, on the date first 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 in which they were made, not misleading. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the holders of Company Common Stock, in each case as and to the extent required by law in connection applicable Federal securities Laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and any amendments thereto prior to filing such documents with the SEC or dissemination of such increase, in each case in its sole discretion and without documents to the consent stockholders of the Company. Parent and Merger Sub shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its counsel prior to responding to such comments, and shall provide to the Company and its counsel a copy of any written responses thereto and telephonic notice of any oral responses or discussions with the SEC staff.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallArticle 10 hereof, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven within five business days after the execution and delivery of this Agreement)date hereof, commence (Merger Sub shall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, 1934 (the "Exchange Act") and the rules and regulations promulgated thereunder thereunder, an offer to purchase (the “Exchange Act”)"Offer") the Offer to purchase for cash all of the outstanding shares of Common Stock at a price of $3.46 per share of Common Stock, net to the seller in cash, without interest (such price or any higher price paid pursuant to the Offer, the "Offer Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer Pricethe outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligations obligation of Purchaser and Merger Sub to commence the Purchaser to Offer and accept for payment payment, and to pay for for, any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I heretoExhibit A hereto and to the terms and conditions of this Agreement. “Fully-Diluted Basis” shall mean, as Subject to the provisions of any datethis Agreement, the number Offer shall expire 20 business days after the date of its commencement (the shares of Common Stock issued and outstanding"Initial Offer Expiration Date"), together unless this Agreement is terminated in accordance with the shares of Common Stock that may be issued by the Company pursuant to warrantsArticle 10, options, rights, or obligations outstanding at that date in which have exercise or conversion prices on a per share basis at or below case the Offer Price, (whether or not vested or then exercisable previously extended in accordance with the terms hereof) shall expire on such date of termination.
(excluding b) Purchaser and Merger Sub expressly reserve the shares of Common Stock issuable pursuant right, in their sole discretion, to the Stock Option Agreement). Subject to modify the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms any condition of the Offer, except that, without the prior written consent of the Company Company, Merger Sub shall not (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the and Purchaser shall cause Merger Sub not to) (i) amend or waive satisfaction of the Minimum ConditionCondition (as defined in Exhibit A), (ii) decrease reduce the Offer Pricenumber of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change the form of consideration payable in the Offer, (ivvi) decrease amend or modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to any holder of Common Stock or (vii) impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in effect and the conditions to the Offer have not been satisfied or waived, Merger Sub may, without the consent of the Company, extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the fortieth business day after the date of this Agreement). So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived and such conditions shall not apply to any extension pursuant to this sentence, Merger Sub may, without the consent of the Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act, if (i) the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.withdrawn represent
Appears in 1 contract
Sources: Merger Agreement (Telelogic Ab)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but practicable, and in any event no later than seven business days after ten (10) Business Days of the execution and delivery date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer an offer to purchase for cash all of the outstanding shares of Company Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this AgreementMerger Sub, and the prior satisfaction or waiver by the of Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offerto cause Merger Sub, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all for any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after shall be subject only to the expiration satisfaction or waiver by Merger Sub of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) A hereto (the “Initial Expiration DateOffer Conditions”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right right, in its sole discretion, to waive any Offer Condition in whole or in part, at any time or from time to time, or to modify the terms or conditions of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Merger Sub shall not, and Parent nor the Purchaser shall not permit Merger Sub to, (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease reduce the Offer Price, (iiiii) change the form of consideration payable in the Offer, (iviii) decrease reduce the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions subject to the Offer, (iv) waive or change the Minimum Condition or the Termination Condition (each as defined in Annex A), (v) add to the Offer Conditions, (vi) terminate, or extend or otherwise amend any or modify the expiration date of the conditions Offer except as required or permitted by Section 1.1(b) or (vii) amend, modify or supplement any Offer Condition or any term of the Offer set forth in Annex I this Agreement in any a manner (other than in an immaterial manner) adverse to the holders of the shares of Company Common Stock. The Company agrees that no Company Common Stock held by the Company, Merger Sub or any of their respective Subsidiaries will be tendered in the Offer; provided, that the Company shall be permitted to tender Company Common Stock held or beneficially owned by the Company pursuant to or in respect of a Company Plan or a trust that relates to obligations pursuant to a Company Plan.
(viib) amend any other term The Offer shall expire on the date that is twenty (20) Business Days after the commencement of the Offer in a manner that is materially adverse (determined using Rule 14d-1(g)(3) of the Exchange Act); provided, however, that, subject to the holders provisions of Article VIII, (i) if at any scheduled expiration date of the shares of Common Stock. Notwithstanding the foregoingOffer, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the if any Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer Condition shall not have been satisfied or waived (to the extent permitted under applicable Law), Merger Sub may, in which event its sole discretion, without the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request consent of the Company, extend the Offer for one or more periods consecutive increments of not to exceed an aggregate of ten more than five (105) Business Days ifeach (the length of such period to be determined by Parent or Merger Sub), as until the earlier of any expiration date, all (A) the termination of this Agreement in accordance with its terms and (B) the conditions set forth in clause date six (6) months from the date hereof (the “Walk-Away Date”) and (ii) if at any scheduled expiration date of Annex I the Offer, if any Offer Condition shall not have been satisfied or waived (other to the extent permitted under applicable Law), Merger Sub shall (and Parent shall cause merger Sub to), extend the Offer at the request of the Company for one or more consecutive increments of not more than subparagraph five (c5) thereofBusiness Days each (the length of such period to be determined by Parent or Merger Sub), until the earlier of (A) are not satisfiedthe termination of this Agreement in accordance with its terms and (B) the Walk-Away Date; provided, but such conditions are reasonably capable of being satisfied however, that in such period, no event shall Merger Sub be required to extend the Offer (x) beyond the Walk-Away Date or (y) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article VIII. In addition, Merger Sub may (and shall where fewer than 90% of the total shares of Company Common Stock then outstanding have been accepted for payment in the Offer or are to be acquired pursuant to the exercise of the Top-Up Option immediately following the Acceptance Time) provide a subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act; provided, however, that in no event shall Merger Sub be required to provide a Subsequent Offering Period (x) beyond the Walk-Away Date or (y) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article VIII. Without the consent of the Company, Merger Sub shall have the right to extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”) or the its staff thereof applicable to the Offer.
(c) Subject to the terms of the Offer and (z) on one this Agreement and the satisfaction, or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) waiver by Merger Sub, of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, (i) accept for payment of the Common Stock are satisfied or earlier waived, but the number of all shares of Company Common Stock validly tendered (and not withdrawn) validly withdrawn pursuant to the OfferOffer promptly after the expiration date thereof (as the same may be extended or required to be extended, together with the Common Stock then owned by Parent “Expiration Date”) and pay for (subject to any applicable Tax withholding pursuant to Section 3.2(b)(iii)) such shares as soon as practicable (and, in any event, no more than two (2) Business Days ) after the Purchaser, represents less than ninety percent Expiration Date or (90%ii) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of any shares of Company Common Stock tendered during any Subsequent Offering Period, accept for payment and pay for all such shares of Company Common Stock validly tendered and not validly withdrawn as soon as practicable (and, in any event, no more than two (2) Business Days following the valid tender of such Shares). The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with Section 1.1(b)), unless this clause (zAgreement is validly terminated in accordance with Section 8.1. Nothing contained in this Section 1.1(c) shall constitute a waiver of the conditions affect any termination rights set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company8.1.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 11.01 and none of the events set forth in Annex I hereto shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (practicable, but in any no event no later than seven three business days days, after the execution date hereof, Parent shall cause Merger Co. to, and delivery of this AgreementMerger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder an amended Offer to Purchase (the “Exchange Act”)"Amended Offer to Purchase") and, if necessary, the related letter of transmittal and any related summary advertisement (the Form TO/A, the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "Offer Documents") to reflect, among other things, an increase in the per share price to be paid in the Offer to purchase for cash all $30.00 and, if necessary, an extension of the shares of Common Stock at currently scheduled expiration date to allow the Offer Priceto remain open for ten business days from the date of such increase. The obligations obligation of Merger Co. to consummate the Purchaser Offer and to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that withdrawn, a number of shares of Common Stock whichthat, together with the shares of Company Common Stock then beneficially owned by the Parent or the Purchaserand/or Merger Co., represents at least eighty percent (80%) 50.1% of the shares of Company Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”") and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Co. expressly reserves the right to waive or modify any such condition (other than the terms of the OfferMinimum Condition, except that, which shall not be waived without the prior written consent of the Company (such consent Company) or the condition relating to be authorized by the board of directors expiration of the HSR Act and to increase the Per Share of Company or a duly authorized committee thereof)Common Stock Amount. Notwithstanding the foregoing, neither the Parent nor the Purchaser shall no change may be made which (i) amend decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) increases the Maximum Amount or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional imposes conditions to the Offer, (vi) amend any of the conditions Offer in addition to those set forth in Annex I hereto, (vi) except as specifically provided for in this Section 2.01(a), extends the expiration date of the Offer or (vii) otherwise alters or amends any term of the Offer in any manner adverse to the holders of the shares of Company Common Stock; provided, however, that the Offer may be extended for any period to the extent required by law or (vii) amend by any other term rule, regulation, interpretation or position of the Offer in a manner that is materially adverse SEC or the staff thereof applicable to the holders Offer. Parent and Merger Co. shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the shares of Common Stock. Notwithstanding the foregoing, subject to the Purchaser may (terms and conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Co. shall not be obligated and Parent shall cause Merger Co. to, accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), without the consent of the Company Merger Co. shall extend the Offer (x) beyond the Initial Expiration Date from time to timetime in the event that, for at a then-scheduled expiration date, all of the conditions to the Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such period extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or periods such fewer number of time as the Purchaser days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied ifsatisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the Initial Expiration Dateexpiration of the Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, any conditions together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, together with the shares of Company Common Stock then owned by Parent and Merger Co., will represent 50.1% of the shares of Company Common Stock outstanding.
(b) Provided that this Agreement shall not have been satisfied or waived (terminated in which event accordance with Section 11.01 and none of the term “Initial Expiration Date” events set forth in Annex II hereto shall mean the latest time have occurred and date at which the Offerbe continuing, as so extended promptly as practicable after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall (i) commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Offer Ratio (as defined below) for each then issued and outstanding share of Company Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), (ii) file with the SEC, to the extent required by the PurchaserExchange Act, shall so expirea Form TO (the "Exchange Form TO"); provided that, an Offer to Exchange (the "Offer to Exchange") and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Purchaser shallOffer to Exchange and such other documents, upon together with all amendments and supplements thereto, the written request "Exchange Offer Documents") and (iii) file with the SEC a Registration Statement on Form S-4 (the "Exchange Form S-4") to register under the Securities Act the securities to be issued in the Exchange Offer. The obligation of Merger Co. to consummate the Company, extend Exchange Offer and to issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer for one or more periods not shall be subject only to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause Annex II hereto. Merger Co. expressly reserves the right to waive any such condition (other than the condition that at least five business days have elapsed since the acceptance for payment and payment for a number of shares of Company Common Stock pursuant to the Offer representing, together with shares of Company Common Stock previously owned by Parent, at least 50.1% of the issued and outstanding shares of Company Common Stock and the subsequent delivery of shares of Company Common Stock not purchased in the Offer to the Depositary under the Exchange Offer, which condition shall not be waived without the prior written consent of the Company) and to increase the Exchange Offer Ratio. Notwithstanding the foregoing, no change may be made which (i) decreases, or would have the effect of decreasing, the Exchange Offer Ratio, (ii) changes the form of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied consideration to be paid in such periodthe Exchange Offer, (yiii) reduces the number of shares of Company Common Stock sought to be purchased in the Exchange Offer, (iv) imposes conditions to the Exchange Offer in addition to those set forth in Annex II hereto, (v) extends the expiration date of the Exchange Offer or (vi) otherwise alters or amends any term of the Exchange Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Exchange Offer may be extended (x) for any period to the extent required by law or by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Exchange Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) if the number of shares of Company Common Stock validly tendered in accordance with the Exchange Offer, together with shares of Company Common Stock owned by Parent as of such date, is less than 90% of the outstanding shares of Company Common Stock, as of the scheduled or extended expiration date. Parent and Merger Co. shall comply with the obligations respecting prompt delivery of shares of Parent Common Stock and announcement under the Exchange Act, and, without limiting the generality of the foregoing, subject to the terms and conditions of this sentenceAgreement, ifincluding but not limited to the conditions of the Exchange Offer, on such Merger Co. shall and Parent shall cause Merger Co. to, accept for exchange and issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Exchange Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Purchaser’s obligation Exchange Offer have not been satisfied or waived as permitted pursuant to accept payment this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the Exchange Offer without accepting shares of Company Common Stock are satisfied or earlier waivedand issuing shares of Parent Common Stock pursuant to the Exchange Offer. Notwithstanding anything to the contrary set forth herein, but no certificates representing fractional shares of Parent Common Stock shall be issued in connection with the Exchange Offer, and in lieu thereof each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock in the Exchange Offer will be paid an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such holder would otherwise be entitled by (B) the Average Exchange Offer Price (as defined below).
(c) For purposes of this Section 2.01, "Exchange Offer Ratio" means the number of shares of Parent Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions determined as set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.below:
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VI hereof and none of the events conditions set forth in Annex I A hereto (the "Offer Conditions") shall have occurred or be existing, within six Business Days of the date hereof, Acquisition will, and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement)Parent will cause Acquisition 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 a tender offer (the “Exchange Act”)"Offer") the Offer to purchase for cash all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock at of U.S. $19.10 net to the Offer Price. The obligations seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto.
(b) Provided that this Agreement shall not have been terminated in accordance with Article VI hereof, the obligation of the Purchaser Acquisition to, and Parent to cause Acquisition to, accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior shall be subject only to the expiration satisfaction or waiver of the Offer Conditions including the condition that at least that number of shares of Company Common Stock equivalent to a majority of the total issued and not withdrawn outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final expiration of the Offer (the "Minimum Condition"); provided that number for the purpose of determining whether the Minimum Condition has been met, any shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Company Common Stock that may have been acquired by Parent pursuant to the option granted to Parent in the Shareholders Agreement shall be issued deemed to have been validly tendered and not withdrawn prior to the expiration of the Offer. The Company agrees that no shares of Company Common Stock held by the Company pursuant or any of its Subsidiaries will be tendered to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable Acquisition pursuant to the Stock Option Agreement)Offer. Subject Acquisition expressly reserves the right, in its sole discretion, to the terms waive any of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of Conditions (other than the Minimum Condition Condition), to increase the consideration payable in the Offer and the to make any other conditions set forth changes in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer; provided, consummate the Offer and accept for payment and pay forhowever, that Acquisition will not, and Parent shall will cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and Acquisition not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except thatto, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall Board): (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) amount or change the form of consideration payable in the Offer, (iviii) decrease the number of shares of Company Common Stock sought in the Offer, (viv) impose additional conditions to the Offer, (v) change any Offer Condition, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a any manner that is materially adverse to the holders of Company Common Stock (other than Parent or Acquisition) or (vii) except as provided below, extend the shares of Common StockOffer. Notwithstanding Subject to the foregoingterms and conditions hereof, the Purchaser may Offer shall remain open until midnight, New York City time, on the date that is twenty Business Days after the Offer is commenced (but shall not be obligated towithin the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the Company extend the Offer Board, Acquisition may (x) beyond extend the Initial Expiration Date from time to timeOffer, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, if at the Initial Expiration Date, any conditions to scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerwaived, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods (each such period shall not to exceed an aggregate of ten (10Business Days) Business Days if, until such time as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such periodor waived, (y) extend the Offer for any such period as may be required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“"SEC”") or the staff thereof applicable to the Offer and Offer, or (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to an aggregate period of not more than ten (10) Business Days. In Days beyond the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.latest
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall7.1, as promptly as reasonably practicable following the execution of this Agreement (but and in any event no later than seven business days within ten (10) Business Days) after the execution Agreement Date, Merger Sub shall (and delivery of this Agreement), Parent shall cause Merger Sub 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 for cash acquire all of the shares of Common Stock at Shares for cash consideration per Share equal to the Offer Price. Consideration.
(b) The obligations obligation of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for acquire any shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior only to the final expiration satisfaction, or waiver by Merger Sub or Parent, of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. A (the “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option AgreementConditions”). Subject to the terms satisfaction, or waiver by Merger Sub or Parent, of the Offer Conditions, Merger Sub shall (and this Agreement, and Parent shall cause Merger Sub to) consummate the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, Offer in accordance with the its terms of the Offer, consummate the Offer and accept for payment and thereafter pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable (and in any event within three (3) Business Days) after the expiration Expiration Date and in any event in compliance with Rule 14e-1(c) under the Exchange Act (the time of such acceptance for payment, the “Acceptance Time”). The Offer Consideration in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the former holder thereof in cash, without interest, subject to the deduction or withholding of any Taxes as contemplated in Section 2.10, on the terms and subject to the conditions set forth in this Agreement. The time scheduled to provide the Offer Consideration for the Shares accepted for payment pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). c) The Offer shall be made by means of an offer to purchase (acquire the “Offer to Purchase”) containing Shares that describes the terms and conditions of the Offer as set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration DateOTP”). The Purchaser Merger Sub and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves reserve the right to waive (in whole or modify in part) any Offer Condition at any time and from time to time, to increase the Offer Consideration or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of the Offerthis Agreement; provided, except thathowever, that without the prior written consent of the Company (such consent to which may be authorized by granted or withheld in the board of directors of the Company or a duly authorized committee thereofCompany’s sole discretion), neither the Parent nor the Purchaser Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer PriceConsideration, including by reducing the Cash Amount or the amount or number of any of the Milestone Payments underlying the CVR to be paid per Share (other than in connection with Section 1.1(g) hereof), (iiiii) change the form of consideration payable in the Offer, (iviii) decrease reduce the number of shares of Common Stock sought Shares to be acquired in the OfferOffer (other than pursuant to Section 1.1(g) hereof), (v) impose additional conditions to the Offer, (viiv) amend or modify (x) any of the conditions set forth Offer Conditions in Annex I in any a manner that is, or would reasonably be expected to be, adverse to the holders of Shares or that would, individually or in the shares aggregate, reasonably be expected to prevent or delay the consummation of Common Stockthe Offer or prevent, delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions or (viiy) amend any other term terms or conditions of the Offer in a manner that is is, or would reasonably be expected to be, materially adverse to the holders of Shares or that would, individually or in the shares aggregate, reasonably be expected to prevent or materially delay the consummation of Common Stockthe Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions, (v) impose conditions to the Offer in addition to the Offer Conditions, (vi) amend, modify or waive the Minimum Condition or the Regulatory Condition (other than waivers of the Regulatory Condition to the extent not related to the jurisdictions set forth on Schedule A-3), (vii) accelerate, extend or otherwise change any time period for the performance of any obligation of Merger Sub or Parent (including the Expiration Date) other than pursuant to and in accordance with this Agreement, (viii) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL, (ix) provide any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (x) amend or modify the terms of the CVR or the CVR Agreement (other than as set forth in the definition thereof).
(d) Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire at one minute following 11:59 p.m., New York City time, on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such date being the “Initial Expiration Date”). Notwithstanding the foregoing, if as of the Purchaser may Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied or, to the extent waivable in accordance with the terms hereof, has not been waived by Merger Sub or Parent, Merger Sub shall (but shall not be obligated tosubject to the rights or remedies of the parties hereto hereunder, including under Article VII), without the consent of the Company extend the Offer (x) and its expiration date beyond the Initial Expiration Date from time (the Initial Expiration Date as it may be extended herein is referred to timeas the “Expiration Date”) on one or more occasions, for in consecutive increments of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion (or periods of time such longer period as Parent and the Purchaser reasonably believes are necessary Company may mutually agree), to cause the conditions permit such Offer Condition to be satisfied if(it being understood, at for the Initial Expiration Dateavoidance of doubt, any conditions to that the Offer shall not be extended pursuant to this sentence if all Offer Conditions have been satisfied or waived in accordance with the terms hereof); provided, however, that in no event shall Merger Sub (in which event i) be required to extend the term “Initial Offer beyond the Outside Date or (ii) be permitted to extend the Offer beyond the Outside Date without the prior written consent of the Company; and provided further, that Merger Sub shall not be required to extend the Offer beyond the Expiration Date that immediately follows the satisfaction of the Regulatory Condition on more than four (4) occasions, not to exceed an aggregate of forty (40) Business Days (provided that each such extension will be ten (10) Business Days unless the Company agrees otherwise), if, as of the applicable Expiration Date” shall mean , all of the latest time Offer Conditions are satisfied or have been waived, other than the Minimum Condition and date conditions which by their nature are to be satisfied at which the expiration of the Offer. Notwithstanding anything herein to the contrary, as so extended by the Purchaser, shall so expire); provided that, the Purchaser Merger Sub shall, upon without the written request consent of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or its staff, any rule or regulation of the staff thereof Nasdaq, or any other applicable Law, in each case, applicable to the Offer.
(e) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except in the event of a termination of this Agreement pursuant to Section 7.1. In the event that this Agreement is terminated pursuant to Section 7.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, not acquire any Shares pursuant thereto, and cause any depositary acting on its behalf to promptly return in accordance with applicable Law all tendered Shares to the registered holders thereof.
(f) On the commencement date of the Offer, Merger Sub and Parent shall (i) file or cause to be filed with the 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, supplements and exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the OTP, the form of the related letter of transmittal, the summary advertisement and other ancillary Offer documents pursuant to which the Offer will be made and instruments pursuant to which the Offer will be made (collectively, and together with all exhibits, amendments and supplements thereto, the “Offer Documents”); and (zii) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond cause the latest expiration that would otherwise Schedule TO and related Offer Documents to be permitted under clause disseminated to the holders of Shares as and to the extent required by applicable Law. Parent and Merger Sub shall (x) or cause the Schedule TO and the Offer Documents to comply as to form in all material respects with the requirements of applicable Law and (y) not contain any untrue statement of this sentencea material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, if, on such expiration date, all in light of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waivedcircumstances under which they were made, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basismisleading; provided, however, that Purchaser’s decision no covenant is made by Parent or Merger Sub with respect to extend information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Offer Documents. The Company shall promptly furnish to Merger Sub and Parent in writing all information concerning the case of this clause (z) shall constitute a waiver of the conditions Company and its stockholders that may be required by applicable Law to be set forth in clauses the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.1(f). The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC, and ▇▇▇▇▇▇ Sub and Parent shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Each of Merger Sub, Parent and the Company agrees to promptly correct any information provided by it for use in the Offer Documents, (dx) if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, and (fy) to correct any material omissions therein. Merger Sub and Parent further agree to take all steps necessary to cause the Offer Documents as so corrected (excluding any willful or intentional breach if applicable) to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Upon receipt of any written or oral comments by ▇▇▇▇▇▇ Sub, Parent or their counsel from the SEC or its staff with respect to the Offer Documents, or any request from the SEC or its staff for amendments or supplements to the Offer Documents, Merger Sub and Parent agree to (i) promptly provide the Company and its counsel with a copy of any such written comments or requests (or a description of any such oral comments or requests); (ii) provide the Company and its counsel a reasonable opportunity to comment on any proposed response thereto, and to give reasonable and good faith consideration to any such comments made by the Company and its counsel; (iii) provide the Company and its counsel an opportunity to participate with Merger Sub, Parent or their counsel in any material obligation discussions or meetings with the SEC or its staff; and (iv) provide the Company with copies of any written comments or responses submitted by ▇▇▇▇▇▇ Sub and Parent in response thereto. Parent and Merger Sub shall respond promptly to any comments from the CompanySEC or its staff with respect to the Offer Documents or the Offer.
(g) If, during the period commencing on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii)Date and ending at the Acceptance Time, (c)(iv)the Shares are changed into a different number or class of shares by reason of any stock split, division or (c)(v). In additionsubdivision of shares, subject stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Consideration shall be appropriately adjusted; provided, however, that nothing in this Section 1.1(g) shall be construed to permit or require the Company to take any action with respect to the provisions of Section 8.1(b)(iii) Shares that is prohibited by the terms of this Agreement.
(h) Subject in all respects to the other terms and conditions of this Agreement and the Offer Conditions, if, Parent shall provide or cause to be provided to Merger Sub on a timely basis the Initial Expiration Date any funds in respect of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up aggregate Cash Amount necessary to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock acquire any Shares that Merger Sub becomes obligated to acquire pursuant to the Offer, which funds shall be deposited with the Purchaser mayPayment Agent concurrently with or promptly following the Acceptance Time.
(i) At or prior to the Acceptance Time, in its sole discretionParent shall duly authorize, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under execute and deliver, and shall ensure that the Exchange Act (a “Subsequent Offering Period”). In additionRights Agent duly authorizes, executes and delivers, the Purchaser may increase the Offer Price (but not change CVR Agreement, subject to any other condition reasonable revisions to the Offer) and extend CVR Agreement that are requested by the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the CompanyRights Agent.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Poseida Therapeutics, Inc.)
The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with Section 8.1 of this Agreement and none no event shall have occurred or circumstance shall exist which constitutes a failure to satisfy any of the events conditions set forth in Annex I A hereto, Subsidiary shall have occurred and be continuing, commence the Purchaser shall, Offer as promptly as reasonably practicable practicable, but in no event later than the fifth business day following the execution public announcement of this Agreement (but in any event no later than seven business days after the execution and delivery terms of this Agreement), 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 for cash all of the shares of Common Stock at the Offer Price. The obligations obligation of the Purchaser Subsidiary to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to the condition that a number of Shares representing not less than 75% of the Company's outstanding voting power (iassuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) there being shall have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”) "), and (ii) the obligation of Subsidiary to commence the Offer and accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the other conditions set forth in Annex I A hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock It is agreed that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I A hereto as are for the sole benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any expiration date such condition. Subsidiary expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition, to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; provided that --------- Subsidiary may only waive the Minimum Condition as long as Subsidiary purchases at least a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) and that, unless previously approved by the Purchaser shallCompany in writing, no change may be made that decreases the price per Share payable in accordance with the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares that Subsidiary offers to purchase in the Offerbelow a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel), imposes conditions to the Offer in addition to those set forth in Annex A hereto or otherwise amends the terms of the OfferOffer in any way that would be materially adverse to holders of Shares. Subject to the next sentence, consummate Subsidiary covenants and agrees that, subject to the terms and conditions of this Agreement, including, without limitation, the conditions of the Offer and set forth in Annex A hereto, Subsidiary shall accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock Shares which have been validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject as soon as it is permitted to the do so under applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stocklaw. Notwithstanding the foregoing, the Purchaser Subsidiary (i) may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond to purchase Shares in excess of the Initial Expiration Date from time Shares required to time, for such period or periods of time as satisfy the Purchaser reasonably believes are necessary Minimum Condition up to cause the conditions to be satisfied if, at tenth business day following the Initial Expiration Date, any date on which all conditions to the Offer shall not first have been satisfied or waived waived, provided that, by virtue of making any such extension, Subsidiary shall be deemed to waive and thereafter shall not be entitled to assert any of the conditions to the consummation of the Offer contained in subsections (b), (c), (d) and (e) to Annex A hereto, (ii) shall extend the Offer at least until 11:59 p.m. New York City time on the sixth business day following the delivery to Parent of a Notice of Superior Proposal (as defined in which event Section 6.8) and (iii) shall extend the term “Initial Expiration Date” Offer at least until the expiration of the period set forth in paragraph (d) or (e) of Annex A if a notice of breach has been delivered in accordance therewith. The Per Share Amount payable in the Offer shall mean be paid net to the latest time seller in cash, upon the terms and subject to the conditions of the Offer.
(b) As soon as practicable on the date at which of commencement of the Offer, as so extended by the Purchaser, Parent and Subsidiary shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten file (10i) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of with the Securities and Exchange Commission (“the "SEC”") or the staff thereof applicable a Tender Offer Statement on Schedule 14D-1 with respect to the Offer and (zii) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond with the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant appropriate Canadian authorities any required filings with respect to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer which in the case of this clause both (z) shall constitute a waiver of the conditions set forth in clauses (di) and (fii) will contain the offer to purchase, form of the related letter of transmittal and related documents published or filed by Parent or Subsidiary (excluding together with any willful supplements or intentional breach of amendments thereto, the "Offer Documents"). Parent, Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that any such information shall have become false or misleading in any material obligation respect and Parent and Subsidiary each further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the appropriate Canadian authorities and to be disseminated to holders of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC and the appropriate Canadian authorities and shall be provided with any comments Parent, Subsidiary and their counsel may receive from the SEC or the appropriate Canadian authorities with respect to the Offer Documents promptly after receipt of such increase, in each case in its sole discretion and without the consent of the Companycomments.
Appears in 1 contract
Sources: Acquisition Agreement (International Murex Technologies Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 6.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, then as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven business days after fifteen (15) Business Days following the execution date hereof), Merger Sub shall, and delivery of this Agreement)Parent shall cause Merger Sub 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 for cash all of the shares of Company Common Stock at the Offer Price; provided, however, that Merger Sub shall not commence the Offer prior to the tenth Business Day following the date hereof without the prior written consent of the Company. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for any for, shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the final expiration of the The Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Company Common Stock which, together with the shares of Company Common Stock then beneficially owned by the Parent or Merger Sub (including, without limitation, the Purchasershares of Company Common Stock to be sold to Merger Sub pursuant to the Stock Purchase Agreement), represents at least eighty percent (80%) 66-2/3% of the outstanding shares of Company Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”"MINIMUM CONDITION") and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser Merger Sub of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser Merger Sub shall, in accordance with the terms of the Offer, promptly after the expiration of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser Merger Sub to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 14d-l 1 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”"OFFER TO PURCHASE") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Each of Parent and Purchaser agree Merger Sub agrees that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s Merger Sub's obligation to purchase shares of Company Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) Days following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”"INITIAL EXPIRATION DATE"). The Purchaser Parent and Merger Sub shall have the Parent agree that they shall not terminate or withdraw right to extend the Offer unlessfor one ten Business Day period for any reason in their sole discretion. The latest time and date at which the Offer, at as may be extended beyond the Initial Expiration DateDate as permitted or required by this Section 1.1(a), the Minimum Condition shall expire shall not have been satisfied be later than the Outside Date (except as may otherwise be required by rule, regulation, interpretation, or position of the other conditions SEC or its staff) and is herein referred to as the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser "EXPIRATION DATE." Merger Sub expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser Merger Sub shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Company Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may or (but shall not be obligated to), without the consent of the Company viii) extend the Offer (x) beyond except as expressly permitted or required by this Section 1.1(a). Each of Patent and Merger Sub agree that they shall not terminate or withdraw the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied ifOffer unless, at the Initial Expiration Date, any conditions to the Offer Minimum Condition shall not have been satisfied or waived the other conditions to the Offer described in Annex I shall not have been satisfied or earlier waived. Notwithstanding the foregoing:
(1) without limiting the right of Parent and Merger Sub to extend the Offer as permitted by this Section 1.1(a), provided that this Agreement shall not have been terminated in which event accordance with Section 6.1 hereof, at the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, Merger Sub will, and Parent will cause Merger Sub to, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days ifeach, as of any expiration datebut in no event beyond the Outside Date, all of if the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) hereto are not satisfiedsatisfied or, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be extent permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on waived at or prior to the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend time the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offerotherwise would expire, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer except to the extent required by law in connection with any such increase, in each case in its sole discretion and without the consent conditions that have not been waived are incapable of the Companybeing satisfied.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall9.1, as promptly as reasonably practicable following the execution of this Agreement (possible but in any no event no later than seven five (5) business days after the public announcement of the execution hereof by the parties, Parent and delivery of this Agreement), GP shall cause Acquisition 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 amended (the “"Exchange Act”")) , the Offer Offer; and to purchase for cash all of cause Acquisition to use its best efforts to consummate the shares of Common Stock at the Offer PriceOffer, including, without limitation, engaging an information agent in connection therewith. The obligations of the Purchaser to Acquisition shall accept for payment issued and to pay for any outstanding shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration common stock, $0.001 par value of the Offer Company (individually a "Share" and not withdrawn shall be subject to (icollectively, the "Shares") there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date associated Rights which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock been validly tendered and not withdrawn pursuant to the Offer promptly after at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”"Minimum Stock Condition") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I heretoArticle 7. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right to waive or modify any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDED, except thatHOWEVER, that Parent, GP and Acquisition agree that no change may be made without the prior written consent of the Company (such consent to be authorized by which decreases the board of directors of the Company or a duly authorized committee thereof)Per Share Amount, neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change which changes the form of consideration payable to be paid in the Offer, (iv) decrease which reduces the maximum number of shares of Common Stock sought to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (v) impose additional on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingShares, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any which imposes conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not addition to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions those set forth in clause Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (ii) except that Acquisition may extend the expiration date of Annex I (other than subparagraph (c) thereof) are not satisfiedthe Offer beyond September 30, but such conditions are reasonably capable of being satisfied in such period, (y) for any period 1999 as required by to comply with any rule, regulation, interpretation, regulation or position interpretation of the Securities and Exchange Commission (“SEC”) or to provide the staff thereof applicable time necessary to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of satisfy the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(vArticle 7). In addition, subject to It is agreed that the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events conditions set forth in subparagraph Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (cincluding any action or inaction by Acquisition) of Annex I shall have occurred and or may be continuing and shall not have been waived by the Purchaser, thenAcquisition, in each such case, the Purchaser shall extend the Offer for up whole or in part at any time and from time to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser maytime, in its sole discretion. The failure by Acquisition at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. The Per Share Amount shall be paid net to the seller in cash, provide less any required withholding of taxes, upon the terms and subject to such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) As soon as practicable after the date hereof, Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the Securities and Exchange Commission (the "SEC") a “subsequent offering period” in accordance Tender Offer Statement on Schedule 14D-1 with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition respect to the Offer) , which shall include an offer to purchase and extend form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the Company and its counsel with any comments which Parent, Acquisition or their counsel may receive from the SEC or the staff of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws. The information provided and to be provided by Parent, GP and Acquisition for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, PROVIDED, HOWEVER, that no representation or warranty is made by Parent, GP or Acquisition with respect to information supplied by the Company or any of its stockholders for inclusion in the Offer Documents. The Company agrees that information provided by the Company or any of its subsidiaries for inclusion or incorporation in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent, GP, Acquisition and the Company each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect and Parent, GP and Acquisition further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyapplicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement hereof and that none of the events set forth in paragraphs (a) through (l) of Annex I A hereto shall have occurred or be existing (and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreementshall not have been waived by Parent), 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 for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (as promptly as reasonably practicable after the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw date hereof the Offer unlessto exchange for each Company Share, at the Initial Expiration Dateelection of the holder thereof, either: (i) 0.26 (the Minimum Condition "Exchange Ratio") of a share of Parent Common Stock; or (ii) cash in the amount of $12.10 (the "Per Share Cash Consideration"). Shareholders who validly tender Company Shares but fail to make an election shall not be deemed to have been satisfied or elected to receive the other conditions Per Share Cash Consideration for each share of Company Common Stock validly tendered.
(b) The obligation of Parent to accept for payment and pay for Company Shares tendered pursuant to the Offer described in the form and amount specified in Section 2.1 shall be subject only to the conditions set forth in Annex I have A hereto; provided, however, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued in connection with the exchange of Parent Common Stock for Company Shares upon consummation of the Offer, and in lieu thereof each tendering shareholder who would otherwise be entitled to a fractional share of Parent Common Stock in the Offer will be paid an amount in cash equal to the product obtained by multiplying (A) the fractional share interest of such holder (after taking into account all shares of Company Common Stock validly tendered for exchange and not been satisfied or earlier waivedwithdrawn by such holder) would otherwise be entitled by (B) the closing price for a share of Parent Common Stock as reported on the NYSE Composite Transaction Tape (as reported in the Wall Street Journal, or, if not reported thereby, any other authoritative source) on the date Parent accepts Company Shares for exchange in the Offer. The Purchaser Per Share Cash Consideration payable by Parent for each validly tendered Company Share accepted for payment by Parent shall, subject to any required withholding of Taxes, be net to the holder thereof in cash. The Company agrees that no Company Shares held by the Company or any of its subsidiaries will be tendered to Parent pursuant to the Offer. Parent expressly reserves the right to waive or modify any of such conditions, to increase the Exchange Offer Consideration payable in the Offer and to make any other changes in the terms of the Offer; provided, except thathowever, that no change may be made without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall which (i) amend or waive satisfaction of decreases the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration amount payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions per Company Share tendered pursuant to the Offer, (viii) amend any reduces the maximum number of Company Shares that may be exchanged in the Offer, or (iii) imposes conditions to the Offer in addition to the conditions set forth in Annex I in any manner adverse A hereto.
(c) Subject to the holders of the shares of Common Stock, or (vii) amend any other term terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in a manner that is materially adverse Annex A hereto as of any expiration date of the Offer, Parent will accept for exchange and pay for all Company Shares validly tendered and not withdrawn pursuant to the holders Offer as soon as practicable after the expiration of the shares Offer. The initial expiration date of Common Stockthe Offer shall be the twentieth business day following the commencement of the Offer. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Parent may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer (i) for one or more periods not to exceed an aggregate of ten (10) Business Days beyond the initial expiration date but in no event ending later than January 31, 2002 if, as at the initial or extended expiration date of the Offer, any expiration date, all of the conditions to the Offer set forth in clause Annex A hereto shall not have been satisfied or to the extent permitted by this Agreement, waived, and (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned any period required by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v)applicable Law. In addition, subject Parent may elect to provide a subsequent offering period for three business days to twenty business days after the provisions acceptance of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock Company Shares pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Offer pursuant to Rule 14d-11 promulgated under the Exchange Act to meet the objective (which is not a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend that there be validly tendered, in accordance with the terms of the Offer and such subsequent offer, prior to the expiration date of such subsequent offer and not withdrawn a number of Company Shares, which together with Company Shares then owned by Parent, constitutes at least 90% of the then outstanding Company Shares.
(d) As promptly as practicable after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with any supplements or amendments thereto, the "Offer Registration Statement") to register the offer and sale of Parent Common Stock pursuant to the Offer. The Offer Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the "Preliminary Prospectus"). As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO which will contain or incorporate by reference all or part of the Preliminary Prospectus and forms of the related letter of transmittal/election form and all other ancillary documents with respect to the Offer (together with all supplements and amendments thereto, the "Schedule TO") (the Schedule TO, the Offer Registration Statement and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents") and (ii) cause the Offer Documents to be disseminated to the holders of Company Shares. Each of the Company, Parent and Merger Sub agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Sub agree 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 disseminated to holders of Company Shares, in each case as and to the extent required by law in connection applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents prior to their being filed with the SEC or disseminated to the holders of Company Shares. Each of Parent and Merger Sub agrees to provide the Company and its counsel with any comments Parent and Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such increase, in each case in comments and to consult with the Company and its sole discretion and without the consent of the Companycounsel prior to responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement hereof and none of the events set forth in Annex I hereto shall have occurred and be continuingexisting, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder 1934 (the “"Exchange Act”")) the Offer to purchase for cash all as promptly as reasonably practicable following the public announcement of the shares execution of Common Stock at this Agreement, but in no event later than ten business days following the Offer Pricedate of the execution of this Agreement. The obligations obligation of the Purchaser to accept for payment any Shares tendered shall be subject only to the satisfaction of those conditions set forth in Annex I. Parent expressly reserves the right from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, to pay waive any such condition, to increase the Per Share Amount, or to make any other changes in the terms and conditions of the Offer. The Per Share Amount shall be net to the seller in cash, subject to reduction only for any shares applicable back-up withholding or stock transfer taxes required by law to be withheld from payments to the seller. The Company agrees that no Shares held by the Company or any of Common Stock validly its Subsidiaries (as hereinafter defined) will be tendered pursuant to the Offer on Offer.
(b) Without the prior written consent of the Company, Parent shall not (i) decrease the Per Share Amount or prior change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I) other than to reduce the percentage of Shares in such condition to any percentage that is not less than a majority or (iv) impose additional conditions to the Offer or amend any other condition or term of the Offer in any manner adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer, Purchaser will, and Parent will cause it to, accept for payment and purchase, as promptly as practicable after expiration of the Offer and not withdrawn shall be subject to (i) there being Offer, all Shares validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser becomes obligated to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer Offer.
(subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). c) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer that will comply in all material respects with the provisions of such Schedule TO and all applicable federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and other ancillary Offer documents pursuant to which the Offer will be made (which documents, together with any supplements or amendments thereto, are referred to collectively herein as the "Offer Documents"). Parent and Purchaser agree promptly to correct the Schedule TO or the Offer Documents if and to the extent that any of them shall have become false or misleading in any material respect (and the Company, with respect to written information supplied by it specifically for use in the Schedule TO or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents before they are filed with the SEC. In addition, Parent and Purchaser agree to use reasonable efforts to provide the Company and its counsel with any comments, whether written or oral, that Parent or Purchaser or either of their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO promptly after receipt of such comments and to consult with the Company and its counsel prior to responding to such comments.
(d) The Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty September 25, 2002. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer pursuant to this Agreement 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 in accordance with the terms of this Agreement; provided, however, that if, at the expiration date of the Offer (20as it may be extended):
(i) the conditions to the Offer described in Annex I hereto (other than the Minimum Condition) shall not have been satisfied or earlier waived but are reasonably capable of being satisfied on or prior to November 8, 2002, or
(ii) the Minimum Condition shall not have been satisfied or, to the extent permitted in Section 1.1(b), earlier waived; Purchaser shall, from time to time extend the expiration date of the Offer (each such individual extension not to exceed 10 business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (until the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other date such conditions to the Offer described in Annex I have not been are satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify waived in accordance with the terms of this Agreement, and Purchaser becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer; provided, further, that in the case of either clause (i) or (ii) above, and except thatas otherwise set forth in Section 8.1(e) hereof, the expiration date of the Offer shall not be extended beyond November 8, 2002, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stockand Purchaser. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all date of the conditions set forth in clause Offer (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (yas it may be extended) for any period required by any rule, regulation, interpretation, or position applicable rules and regulations of the Securities and Exchange Commission (“SEC”) or SEC in connection with an increase in the staff thereof applicable consideration to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) paid pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, may provide a “"subsequent offering period” " (as contemplated by, and in accordance with with, Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, Act) of not less than three business days nor more than five business days following its acceptance of and payment for the Purchaser may increase the Offer Price (but not change any other condition to Shares in the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I Exhibit A hereto shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no not later than seven five business days after the public announcement of the execution and delivery of this Agreement), Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer ), an offer to purchase for cash (the "Offer") all outstanding shares of the shares of Company Common Stock at a price of $12.00 per share, net to the seller in cash (the "Offer PriceConsideration"). The obligations obligation of Parent and Sub to commence the Purchaser to Offer, consummate the Offer, accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of in the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other those conditions set forth in Annex I Exhibit A hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable .
(excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”b) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves reserve the right to waive amend or modify the terms of the Offer, except that, without the prior written consent of the Company Company, Sub shall not (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereofand Parent shall not cause Sub to), neither the Parent nor the Purchaser shall
(i) amend decrease the Offer Consideration or waive satisfaction the form of consideration therefor or decrease the Minimum Conditionnumber of Shares sought pursuant to the Offer, (ii) decrease change, in any material respect, the Offer Priceconditions to the Offer, (iii) change the form of consideration payable in impose additional material conditions to the Offer, (iv) decrease waive the condition that there shall be validly tendered and not withdrawn prior to the time the Offer expires a number of shares of Company Common Stock which constitutes at least 65% of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully- diluted basis" having the following meaning, as of any date: the number of shares of Company Common Stock sought in outstanding, together with Shares which the OfferCompany may be required to issue pursuant to options, warrants or other obligations outstanding at that date), (v) impose additional extend the expiration date of the Offer (except that Sub may extend the expiration date of the Offer (a) as required by law or (b) for such periods as Sub may reasonably deem necessary (but not to a date later than the 45th calendar day after the date of commencement) in the event that any condition to the Offer is not satisfied), or (vi) amend any term of the Offer in any manner materially adverse to holders of shares of Company Common Stock; provided, however, that, except as set forth above, Sub may waive any other condition to the Offer in its sole discretion; and provided further, that the Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). Assuming the prior satisfaction or waiver of the conditions to the Offer, (vi) amend any Sub shall accept for payment, and pay for, in accordance with the terms of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Company Common Stock validly tendered (and not withdrawn) withdrawn pursuant to the Offer, together with Offer as soon as practicable after the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyexpiration date thereof.
Appears in 1 contract
Sources: Merger Agreement (Seven Up Rc Bottling Company of Southern California Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 8.01 and none of the events set forth in Annex I A hereto shall have occurred and or be continuingexisting, Purchaser shall commence the Purchaser shall, Offer as promptly as reasonably practicable following after the execution of this Agreement (date hereof, but in any no event no later than seven five business days after the execution and delivery initial public announcement of this Agreement), Purchaser's intention 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 for cash all of the shares of Common Stock at the Offer PriceOffer. The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least the number of Shares that when added to the Shares already owned by Parent and the number of Shares to be purchased by Purchaser pursuant to the Stock Purchase Agreement shall constitute more than 50% 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 prior to the expiration of the Offer and not withdrawn also shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration satisfaction of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I A hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, without the prior written consent of the Company (such consent to that no change may be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), made 7 without the consent of the Company extend which decreases the Per Share Amount or which reduces the maximum number of Shares to be purchased in the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any which imposes conditions to the Offer shall not have been satisfied or waived (in which event addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the term “Initial Expiration Date” shall mean seller in cash, upon the latest time terms and date at which subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request promptly as practicable after expiration of the CompanyOffer, extend for all Shares validly tendered and not withdrawn.
(b) As soon as reasonably practicable on the Offer for one or more periods not to exceed an aggregate date of ten (10) Business Days if, as of any expiration date, all commencement of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfiedOffer, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of Purchaser shall file with the Securities and Exchange Commission (“the "SEC”") or a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the staff thereof applicable to the Offer and (z"Schedule 14D-1") on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant with respect to the Offer. 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 advertisement (the Schedule 14D-1, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the Common Stock then owned "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 Purchaser, represents less than ninety percent (90%) Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law applicable federal securities laws. In the event that the Offer is terminated or withdrawn by Purchaser, Parent and Purchaser shall cause all tendered Shares to be returned pursuant to the instructions set forth in connection with such increase, in each case in its sole discretion and without the consent letter of the Companytransmittal.
Appears in 1 contract
Sources: Merger Agreement (SCS Compute Inc)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallArticle 10 hereof, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven within ten business days after the execution and delivery of this Agreement)date hereof, commence (Merger Sub shall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act"), and the rules and regulations promulgated thereunder thereunder, an offer to purchase (the “Exchange Act”"Offer") all, and in any event not less than a majority on a fully diluted basis (assuming the exercise of all Options (as defined in Section 5.2(d)) that are then exercisable and any other rights to acquire shares of Common Stock on the Offer to date of purchase for cash all (a "Fully Diluted Basis"), of the outstanding shares of Common Stock at a price of $3.00 per share of Common Stock, net to the seller in cash, without interest (such price or any higher price paid pursuant to the Offer, the "Offer Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer Pricethe outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligations obligation of Purchaser and Merger Sub to commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A hereto and to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, the Offer shall expire 20 business days after the date of its commencement, unless this Agreement is terminated in accordance with Article 10, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Purchaser and Merger Sub expressly reserve the right, in their sole discretion, to modify the terms of the Purchaser to accept for payment Offer and to waive any condition of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change the form of consideration payable in the Offer, (vi) except as set forth herein, amend or modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to the holders of Common Stock or (vii) impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in effect and the conditions to the Offer set forth in Exhibit A have not been satisfied or waived, Merger Sub may, without the consent of the Company, extend the expiration date of the Offer for one or more periods of up to ten additional business days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the sixtieth business day after the date of this Agreement (the "Outside Date")). So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived and shall not apply to any extension, Merger Sub may, without the consent of the Company, provide for one or more subsequent offering periods in accordance with Rule 14d-11 under the Exchange Act, if (i) the number of shares of Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of the Common Stock on a Fully Diluted Basis and (ii) Merger Sub shall accept and promptly pay for any all shares of Common Stock validly tendered pursuant and not withdrawn; provided, however, that no such subsequent offering periods shall exceed, in the aggregate, twenty business days. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, extend the Offer (beyond the Outside Date, if necessary) (i) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) for one or more periods of up to ten additional business days due to the other failure to satisfy the condition to the Offer relating to the expiration or termination of the waiting period under the HSR Act (as defined below). It is agreed that the conditions set forth in Annex I heretoExhibit A are for the sole benefit of Merger Sub and Purchaser and may be asserted by Merger Sub or Purchaser, or may be waived in whole or in part by Merger Sub or Purchaser, in their sole discretion. “Fully-Diluted Basis” The failure by Merger Sub or Purchaser at any time to exercise any of the foregoing rights shall mean, as not be deemed a waiver of any date, the number of the shares of Common Stock issued such right and outstanding, together with the shares of Common Stock that each such right shall be deemed an ongoing right which may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding asserted at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement)any time. Subject to the terms and conditions of the Offer and this AgreementAgreement and to the provisions of Rule 14d-11 under the Exchange Act, Merger Sub shall accept for payment and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shallpay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after the expiration of the Offer Offer.
(subject c) Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer is not conditioned and shall be liable on any financing arrangements a direct and primary basis for the performance by Merger Sub or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days Surviving Corporation (as defined in Rule 14d-1 promulgated Section 2.1), as the case may be, of its obligations under this Agreement with respect to the Exchange Act, each a “Business Day”) following the commencement payment of the Offer Consideration, the Option Consideration (within as defined in Section 5.2(d)) and the meaning of Rule 14d-2 promulgated under the Exchange Act) Merger Consideration (the “Initial Expiration Date”as defined in Section 5.2(b)). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unlessMerger Sub may, at the Initial Expiration Dateany time, the Minimum Condition shall not have been satisfied transfer or the other conditions assign to the Offer described in Annex I have not been satisfied one or earlier waived. The more corporations directly or indirectly wholly-owned by Purchaser expressly reserves the right to waive purchase all or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders portion of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with provided that any such transfer or assignment shall not prejudice the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) rights of the outstanding tendering stockholders to receive payment for shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) properly tendered and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer accepted for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companypayment.
Appears in 1 contract
Sources: Merger Agreement (Uproar Inc)
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement its terms and provided that none of the events set forth in clause (iii)(a) of Annex I A shall have occurred and be continuingsubject to there being no order, 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 enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Company or any subsidiary or affiliate thereof having such effect, Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement shall (but in any event no later than seven business days after the execution and delivery of this Agreement), Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer 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 purchase for cash all consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment payment, purchase and to pay for any shares of Common Stock validly Company Shares tendered pursuant to the Offer on or prior to the expiration of the Offer (and not withdrawn validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (ix) there being the condition (the “Minimum Condition”) that at least that number of Company Shares validly tendered and not withdrawn prior to the final expiration date of the Offer that (other than Company Shares tendered by guaranteed delivery where actual delivery has not occurred), when added to any Company Shares already owned by Parent or any of its controlled subsidiaries, if any, equal a majority of the sum of the then outstanding Company Shares plus (without duplication) a number equal to the number of shares of Common Stock which, together with Company Shares issuable upon the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent vesting (80%) including vesting solely as a result of the shares consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into Common Shares, or other rights to acquire or be issued Common Shares (including then outstanding Company Stock outstanding Options and Company RSUs, assuming the effectiveness thereof occurred on a Fully-Diluted Basis (the “Minimum Condition”) Expiration Date), in each case, with an exercise or conversion price below the Per Share Amount and (iiy) the other conditions set forth in Annex I heretoA hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). “Fully-Diluted Basis” Purchaser expressly reserves the right (but shall meannot be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in Section 2.1(i)), changes the form of any dateconsideration payable in the Offer, adds to the conditions to the Offer, extends the Offer other than as set forth in this Section 2.1, decreases the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may Company Shares sought to be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth purchased in Annex I hereto as of any expiration date of the Offer, extends the Purchaser shall, Offer other than in a manner pursuant to and in accordance with the terms of Section 2.1(d), or modifies or amends any condition to the Offer in any manner that broadens such conditions or is adverse to the holders of Company Shares.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of 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, consummate as so extended, may expire).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 9.1, (i) Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the Nasdaq Stock Market that is applicable to the Offer, and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall extend (and re-extend) the Offer and accept its expiration date beyond the initial Expiration Date or such subsequent date for payment 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 pay for(ii) of this Section 2.1(d), (A) if any of the events set forth in clause (iii)(a) of Annex A shall have occurred on or before the initial Expiration Date or the end of any Additional Offer Period, in no event shall Purchaser be required to extend the Offer beyond the Initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 20 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 9.1.
(e) If the Acceptance Date occurs, but there has been a 251(h) Inapplicable Determination, and the number of Company Shares that have been validly tendered and not properly withdrawn in the Offer, together with any Company Shares then owned by Parent or any subsidiary of Parent (assuming exercise of the Top-Up Option in full and excluding from such ownership Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), is less than 90% of the outstanding Shares, Purchaser may, in its sole discretion without the consent of the Company, provide for one subsequent offering period immediately following the Acceptance Date (as provided in Rule 14d-11 under the Exchange Act) of not less than three (3) nor more than twenty (20) business days (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act). Notwithstanding the foregoing, no extension provided for in this Section 2.1(e) shall extend the Offer beyond the Outside Date. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause the Purchaser to to) accept for payment 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 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 9.1. Notwithstanding anything to the contrary set forth in this Agreement, Purchaser shall not (and Parent shall cause Purchaser not to) commence any “subsequent offering period” after the Acceptance Date if the Merger can be effected pursuant to either (i) Section 251(h) of the DGCL or (ii) Section 253 of the DGCL.
(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 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 applicable seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreement, Purchaser or Parent on Purchaser’s behalf shall accept for payment and pay for all Company Shares validly tendered and not withdrawn pursuant to the Offer promptly after following the expiration of the Offer (subject the time and date of the acceptance for payment, the “Acceptance Date”); provided, however, that without the prior written consent of the Company, Purchaser shall not accept for payment or pay for any Company Shares if, as a result, Purchaser would acquire less than the number of Company Shares necessary to satisfy the Minimum Condition. If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the applicable provisions satisfaction of Rule 14d-11 under Purchaser that such taxes either have been paid or are not applicable.
(h) As promptly as reasonably practicable on the Exchange Actdate of commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the extent applicable)Offer. The Offer Schedule TO shall be made contain or shall incorporate by means of reference an offer to purchase (the “Offer to Purchase”) containing and form of the terms set forth in this Agreement related letter of transmittal and having only any other ancillary documents pursuant to which the Minimum Condition and Offer will be made (the other conditions set forth in Annex I hereto. Parent and Purchaser agree that Schedule TO, the Offer to Purchase will provide a statement in and such other documents, together with all appropriate places therein exhibits, supplements and amendments thereto, being referred to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (herein collectively as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration DateOffer Documents”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary use its reasonable best efforts to cause the conditions Offer Documents to be satisfied if, at the Initial Expiration Date, any conditions disseminated to the Offer shall not have been satisfied or waived (holders of Company Shares in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer respects to the extent required by law applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in connection all material respects with such increasethe 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 furnish to Purchaser or Parent all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(h). Parent and Purchaser shall give the Company and its sole discretion counsel a reasonable opportunity to review and without comment on the consent Schedule TO before it is filed with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Company and its counsel. In addition, Parent and Purchaser agree to (i) provide the Company and its counsel in writing with any written comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or their counsel may receive from time to time from the CompanySEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(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 be adjusted to the extent appropriate.
Appears in 1 contract
Sources: Merger Agreement (Symmetricom Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VIII hereof and so long as none of the events set forth in Annex I on ANNEX A hereto (the "TENDER OFFER CONDITIONS") shall have occurred and be are continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery date of this Agreement), 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 for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn Sub shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay forSub to, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer as promptly as reasonably practicable (but in no event later than five (5) Business Days after the first public announcement of this Agreement by the Company). The initial expiration date of the Offer shall be the twentieth Business Day from and after the date the Offer is commenced (the “"Initial Expiration Date”"). The Purchaser obligation of Sub to accept for payment and to pay for any Shares tendered shall be subject to the Tender Offer Conditions, any of which may be waived by Parent agree or Sub in whole or in part in their sole discretion; PROVIDED, HOWEVER, that they Sub shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, waive the Minimum Condition shall not have been satisfied or without the other conditions to prior consent of the Offer described in Annex I have not been satisfied or earlier waivedCompany. The Purchaser Parent and Sub expressly reserves reserve the right to waive or modify the terms of the Offer, except thatincluding, without limitation, to extend the Offer beyond any scheduled expiration date; PROVIDED, HOWEVER, that neither Parent nor Sub shall, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser shall (i) amend reduce the number of Shares subject to the Offer or waive satisfaction of the Minimum Condition, (ii) decrease reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, Offer or (v) impose additional conditions make any change to the Offer, (vi) amend any terms of the conditions set forth in Annex I Offer (including the Tender Offer Conditions) which is materially adverse in any manner adverse to the holders of the shares Shares. Subject to the prior satisfaction or waiver of Common Stockthe Tender Offer Conditions, Sub shall, and Parent shall cause Sub to, accept for payment and pay for, in accordance with the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or (vii) amend any other term prior to the expiration of the Offer promptly after the expiration of the Offer and in any event no later than three (3) Business Days following the expiration of the Offer. Parent shall provide or cause to be provided to Sub on a manner timely basis funds sufficient to accept for payment and pay for any and all Shares that is materially adverse Sub becomes obligated to accept for payment and pay for pursuant to the holders Offer. Parent and Sub shall have the right, in their sole discretion, to extend the expiration date of the shares of Common Stock. Notwithstanding the foregoingOffer, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or successive periods of time as up to twenty (20) Business Days each, but in no event, later than the Purchaser reasonably believes are necessary to cause Termination Date, if the conditions to be satisfied ifTender Offer Conditions have not been met. If on any scheduled expiration date of the Offer, the Offer would have expired without any Shares being purchased because the Tender Offer Conditions have not been met, Parent and Sub shall, at the Initial Expiration Date, any conditions request of the Company (subject always to the Offer shall not have been satisfied or waived (in which event terms and conditions of this Agreement), extend the term “Initial Expiration Date” shall mean the latest time and expiration date at which of the Offer, as so extended by the Purchaserfrom time to time, shall so expire); provided that, the Purchaser shall, upon the written request for successive periods of the Company, extend the Offer for one or more periods not up to exceed an aggregate of ten twenty (1020) Business Days if, as of any expiration date, all of each (but in no event later than the conditions set forth in clause (iiTermination Date) of Annex I (other than subparagraph (c) thereof) are not satisfied, but unless such conditions are reasonably not capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable prior to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v)Termination Date. In addition, subject notwithstanding anything in this Section 2.1(a) to the provisions of Section 8.1(b)(iii) of this Agreementcontrary, if, on the Initial Expiration Date any of the events set forth if not already disclosed in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In Purchase, Parent and Sub may amend the event Schedule TO to permit the Minimum Condition is satisfied and the Purchaser purchases the shares announcement of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” period (as such term is defined in accordance with Rule 14d-11 14d-1 promulgated under the Exchange Act (a “Subsequent Offering Period”the "SUBSEQUENT OFFER PERIOD"). In addition, the Purchaser may increase the Offer Price (but not change any other condition ) to the Offer) , and extend Sub may include a Subsequent Offer Period to the Offer for up to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent a maximum of the Companytwenty (20) Business Days.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been validly terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall11.01, as promptly as reasonably practicable following the execution of this Agreement (but and in any event no later than seven business days within 10 days) after the execution and delivery of this Agreement)date hereof, Merger Subsidiary shall 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 for cash all of the shares of Common Stock at the Offer PriceOffer. The obligations of the Purchaser Merger Subsidiary’s obligation to accept for payment and to pay for any shares of Common Stock Shares validly tendered and not properly withdrawn Table of Contents pursuant to the Offer on or prior to the expiration date thereof (as it may be extended from time to time in accordance with the terms of the Offer and not withdrawn this Agreement) shall be subject to (i) there being validly tendered and not withdrawn prior solely to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent satisfaction or the Purchaser, represents at least eighty percent waiver (80%if permitted hereunder) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to PurchaseConditions”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein shall not be subject to the effect that the Purchaser’s obligation to purchase shares satisfaction of Common Stock pursuant to any other conditions. The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date”. Merger Subsidiary shall not conditioned on any financing arrangements (and Parent shall not permit Merger Subsidiary to) terminate or subject otherwise withdraw the Offer unless and until this Agreement has been validly terminated pursuant to any financing condition. Unless extended and in accordance with Section 11.01. In the event that this Agreement is validly terminated pursuant to and in accordance with Section 1.1(a)11.01, Merger Subsidiary shall promptly (and in any event within one Business Day after the Offer shall provide for an initial expiration date of twenty (20such termination) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser terminate and the Parent agree that they shall not terminate or withdraw the Offer unlessand, at notwithstanding the Initial Expiration Datesatisfaction or waiver of any Offer Conditions, the Minimum Condition shall not have been satisfied accept for payment or pay for any Shares theretofore tendered in the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Offer.
(b) Merger Subsidiary expressly reserves the right to waive or modify any of the terms Offer Conditions and, prior to the expiration of the Offer, except thatto make any change in the terms of or conditions to the Offer; provided that notwithstanding the foregoing, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Subsidiary shall not:
(i) amend or waive satisfaction impose conditions on Merger Subsidiary’s obligation to accept for payment and pay for Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Minimum ConditionOffer, other than the Offer Conditions;
(ii) waive or change the Minimum Condition (as defined in Annex I);
(iii) decrease the Offer Price, ;
(iiiiv) change the form of consideration payable to be paid in the Offer, ;
(ivv) decrease the number of shares of Common Stock Shares sought in the Offer, (v) impose additional conditions to the Offer, ;
(vi) amend any extend or otherwise change the expiration date of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or Offer except as otherwise provided herein; or
(vii) amend or modify any other term of the Offer Conditions or amend or modify any of the terms of the Offer, in either case in a manner that broadens any of the Offer Conditions, would require Merger Subsidiary to extend the Offer or is otherwise materially adverse to the holders of the shares of Common StockShares (in their capacity as such).
(c) Unless extended as provided in this Agreement, the Offer shall expire on the date that is twenty business days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, the Purchaser may unless this Agreement shall have been validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall (but and Parent shall not be obligated cause Merger Subsidiary to), without the consent of the Company ) extend the Offer (xi) beyond the Initial Expiration Date from time to time, for such period or successive extension periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied reasonable duration if, at the Initial Expiration Datescheduled expiration date of the Offer (as it may be extended from time to time in accordance with this Agreement), any conditions to of the Offer Conditions shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time waived, until such Offer Conditions are satisfied or waived, and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any applicable rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable or NASDAQ or any period otherwise required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) the End Date or (y) of this sentence, if, on such expiration date, the date that is 60 days after the date that all of the conditions Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waivedextent permissible, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by Merger Subsidiary. If all of the PurchaserOffer Conditions have been satisfied or waived prior to the expiration of the Offer, thenand Merger Subsidiary is permitted by Applicable Law to accept for payment and pay for all Shares that have been validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, in each such case, the Purchaser Merger Subsidiary shall not (and Parent shall not permit Merger Subsidiary to) extend the Offer for up to ten (10) Business Daysany reason without the prior written consent of the Company. In the event that, following the Minimum Condition is satisfied and the Purchaser purchases the shares expiration of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.Merger
Appears in 1 contract
Sources: Merger Agreement (Avocent Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VIII and none of the events or conditions set forth in Annex I A shall have occurred and be continuingexisting, the Purchaser shallParent shall cause Subcorp to commence, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Subcorp shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “”Exchange Act”)) ), as promptly as reasonably practicable, but in no event later than five business days, after the Offer to purchase for cash all date of this Agreement, the shares of Common Stock at the Offer PriceOffer. The obligations of the Purchaser Parent shall cause Subcorp to accept for payment, and Subcorp shall accept for payment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment and to pay all additional shares of Company Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). Subcorp shall not accept for payment any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn unless there shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final Expiration Date such number of shares of Company Common Stock that satisfy the Minimum Condition. Subcorp expressly reserves the right to increase the Per Share Amount and to waive any condition of the Offer, except the Minimum Condition. Without the prior written consent of the Company, Subcorp shall not decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose conditions to the Offer in addition to those set forth in Annex A, change or waive the Minimum Condition or, except as provided in Section 1.1(c) or (d), extend the expiration of the Offer that number of shares of Common Stock whichbeyond the initial Expiration Date, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) amend any other term of the shares Offer in a manner materially adverse to the Company Shareholders. The Per Share Amount shall be paid less any required withholding of Common Stock outstanding on a Fully-Diluted Basis (Taxes, upon the “Minimum Condition”) terms and (ii) subject to satisfaction or waiver of the other conditions of the Offer set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the A. The Company agrees that no shares of Company Common Stock issued and outstanding, together with the shares of Common Stock that may be issued held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subcorp shall file with the Securities and Exchange Commission (the “Commission”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date the Offer is commenced, which shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the “Offer Documents”) and use its reasonable best efforts to cause the Offer Documents to be disseminated to the Company Shareholders in accordance in all material respects with the applicable requirements of the United States federal securities laws. Parent and Subcorp will use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of the United States federal securities laws. The information provided and to be provided by the Company, Parent and Subcorp for use in the Offer Documents shall not, on the date filed with the Commission and on the date first published or sent or given to holders of shares of Company Common Stock (the “Company Shareholders”), as 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, except that no representation is made by Parent or Subcorp with respect to the information supplied by the Company for inclusion in the Offer Documents. The Company, Parent and Subcorp each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the Commission and disseminated to the Company Shareholders to the extent required by applicable United States federal securities laws. The Company shall promptly furnish to Parent or Subcorp all information concerning the Company that is required or reasonably requested by Parent or Subcorp 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 Offer Documents prior to the filing thereof with the Commission or dissemination to the Company Shareholders. In addition, Parent and Subcorp shall provide the Company and its counsel any comments, whether written or oral, that Parent or Subcorp or their counsel may receive from time to time from the Commission or the staff of the Commission (the “SEC Staff”) with respect to the Offer Documents within a reasonable time after receipt of such comments, consult with the Company and its counsel prior to responding to such comments and provide the Company with copies of all written responses and advise the Company as to the substance of all oral responses.
(c) Subject to the provisions of Article VIII and the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, on the date that is 20 business days after the date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below an authorized extension of the Offer Priceas so extended, whether also an “Expiration Date”). Subcorp may, without the consent of the Company, (A) if at the time of the then scheduled Expiration Date any of the conditions of the Offer are not satisfied or waived, extend the Offer for such period as Subcorp determines; provided that such extension shall be in increments of not vested more than five business days if all of the conditions set forth on Annex A other than the Minimum Condition have been satisfied or waived at such Expiration Date, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission or the SEC Staff applicable to the Offer and (C) if at the then exercisable scheduled Expiration Date all of the conditions set forth on Annex A have been satisfied or waived, extend the Offer for one subsequent offering period (excluding as provided in Rule 14d-11 under the shares Exchange Act) for three to 20 business days after Subcorp’s acceptance for payment of the Company Common Stock issuable then tendered and not withdrawn pursuant to the Stock Option Agreement). Subject Offer in order to acquire at least 90% of the outstanding Company Common Stock.
(d) The Company may cause the extension of the Expiration Date in accordance with, and subject to the terms of, this Section 1.1(d).
(i) In the event that the Minimum Condition has not been satisfied or waived at the then scheduled Expiration Date, at the written request of the Offer and this AgreementCompany, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of (A) the satisfaction or waiver of such condition, (B) Parent’s reasonable determination, after May 1, 2005, that such condition to the Offer is not capable of being satisfied on or prior to the Outside Date, (C) the termination of this Agreement in accordance with its terms or (D) the Outside Date; provided that the Company shall not be entitled to any extension of the Expiration Date contemplated by this Section 1.1(d)(i) if (x) any of the obligations of the Principal Shareholders under the Support Agreement have been breached by one or more of the Principal Shareholders beneficially owning, individually or in the aggregate, more than 3% of the Fully Diluted Shares or (y) York has breached any of his obligations under the York Support Agreement or M▇▇▇▇▇ has breached any of his obligations under the M▇▇▇▇▇ Support Agreement.
(ii) In the event that any applicable waiting period under the HSR Act shall not have expired or been terminated at the then scheduled Expiration Date, at the written request of the Company, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of (A) the expiration or termination of such waiting period, (B) the termination of this Agreement in accordance with its terms or (C) the Outside Date.
(iii) In the event that a failure to satisfy the condition in paragraph (d) of Annex A shall exist and the cure period described therein shall not have expired at the then scheduled Expiration Date, at the written request of the Company, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of (A) the cure of such failure, (B) the expiration of such cure period, (C) the termination of this Agreement in accordance with its terms or (D) the Outside Date.
(iv) In the event that a notice contemplated by Section 6.3(c) is delivered to Parent within three business days of the initial Expiration Date, then Subcorp shall extend the Offer for a period of no less than three business days.
(e) Subject to the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of to the Offer, the Purchaser Subcorp shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to Subcorp to, accept for payment payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Actpromptly, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth but in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)no event more than three business days, the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
Sources: Merger Agreement (Amx Corp /Tx/)
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement its terms and provided that none of the events set forth in clause (v)(a) of Annex I A shall have occurred and be continuingsubject to no Law having been enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Purchaser shallCompany or any subsidiary or affiliate thereof having such effect, as promptly as reasonably practicable following the execution of this Agreement Sub shall (but in any event no later than seven business days after the execution and delivery of this Agreement), Parent shall cause Sub 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 as promptly as reasonably practicable, and in any event within twenty (20) Business Days, after the date hereof. Following such launch, each of Parent and Sub shall use its reasonable best efforts to purchase for cash all consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer (and not withdrawn validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (ix) there being the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not withdrawn prior to the final expiration date of the Offer that number of (other than shares of Company Common Stock which, together with the shares of Common Stock then beneficially owned tendered by the Parent or the Purchaser, represents at least eighty percent (80%guaranteed delivery that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer), when added to any shares of Company Common Stock already owned by Parent or any of its controlled subsidiaries, if any, equals a majority of the then outstanding on a Fully-Diluted Basis (the “Minimum Condition”) shares of Company Common Stock and (iiy) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I A hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer conditions described in clauses (x) and (y) are collectively referred to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration DateTender Offer Conditions”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition which may not be amended or modify waived), to increase the price per share of Company Common Stock payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except that, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereofexcept as provided in Section 2.1(h)), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, (iv) decrease adds to the conditions to the Offer, decreases the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional conditions extends the Offer other than in a manner pursuant to and in accordance with the terms of this Section 2.1 or modifies or amends any condition to the Offer, (vi) amend any of the conditions set forth in Annex I Offer in any manner that broadens such conditions or is adverse to the holders of the shares of Company Common Stock.
(c) Subject to the terms and conditions thereof, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingshall remain open until midnight, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to New York City time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), any conditions to unless the period of time for which the Offer is open shall not have been satisfied extended pursuant to, and in accordance with, the provisions of this Section 2.1 or waived as required by applicable Laws or the interpretations of the SEC (in which event the term “Initial Expiration Date” shall mean the latest earliest time and date at which that the Offer, as so extended by the Purchaserextended, shall so may expire); provided that.
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Purchaser shallunless this Agreement shall have been terminated in accordance with Section 9.1, upon the written request of the Company, (i) Sub shall extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer and (zii) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial initial Expiration Date or any subsequent date as of which the events set forth in subparagraph (c) of Annex I shall have occurred Offer is scheduled to expire, any Tender Offer Condition is not satisfied and be continuing and shall has not have been waived by the Purchaserwaived, then, in each such case, the Purchaser then Sub 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 ten (10) Business Days. Days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), in no event shall Sub be required to extend the Offer beyond the Termination Date; provided further, that in no event shall Sub be permitted to extend the Offer beyond the Termination Date without the prior written consent of the Company; and provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Section 9.1.
(e) In the event that this Agreement is terminated pursuant to Section 9.1, Sub shall (and Parent shall cause Sub to) promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer.
(f) The Per Share Amount shall, subject to applicable withholding of Taxes, be net to the applicable seller, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreement, Sub or Parent on Sub’s behalf shall accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn promptly following the expiration of the Offer; provided, however, that without the prior written consent of the Company, Sub shall not accept for payment or pay for any shares of Company Common Stock if, as a result, Sub would acquire less than the number of shares of Company Common Stock necessary to satisfy the Minimum Condition is satisfied and the Purchaser purchases Condition. The time at which Sub first accepts for payment the shares of Company Common Stock 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 shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Sub that such Taxes either have been paid or are not applicable. The Company shall register (and shall instruct its transfer agent to register) in the name of Sub the shares of Company Common Stock accepted for payment by Sub immediately after the Acceptance Time.
(g) As soon as reasonably practicable, and in any event within twenty (20) Business Days, after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S−4 to register the offer and sale of Parent Common Stock pursuant to the Offer, Offer and the Purchaser may, in its sole discretion, provide Merger (the “Registration Statement”). The Registration Statement will include a “subsequent offering period” in accordance with preliminary prospectus containing the information required under Rule 14d-11 promulgated 14d−4(b) under the Exchange Act (a the “Subsequent Offering PeriodPreliminary Prospectus”). In addition, the Purchaser may increase On the Offer Price Commencement Date, Parent and Acquisition Sub shall: (but not change any other condition i) cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which will contain or incorporate by reference the Preliminary Prospectus and forms of the related letter of transmittal and summary advertisement (such Tender Offer Statement on Schedule TO and all exhibits, amendments and supplements thereto being referred to collectively in this Agreement as the “Offer Documents”); and (ii) and extend cause the Offer Documents to be disseminated to holders of shares of Company Common Stock to the extent required by law applicable Law. Parent and Sub shall use reasonable best efforts to cause the Registration Statement and the Offer Documents to comply in all material respects with applicable Law. The Company and its counsel shall be given reasonable opportunity to review and comment on the Registration Statement and the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC. Parent and Sub shall promptly provide the Company and its counsel with a copy or a description of any comments received by Parent, Sub or their counsel from the SEC or its staff with respect to the Registration Statement or the Offer Documents. Each of Parent and Sub shall use reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Registration Statement, the Offer Documents or the Offer. To the extent required by applicable Law, each of Parent, Sub and the Company shall use reasonable best efforts to (1) correct promptly any information provided by it for use in the Registration Statement or the Offer Documents to the extent that it becomes aware that such information shall have become false or misleading in any material respect and (2) take all steps necessary to promptly cause the Registration Statement and the Offer Documents, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Sub all information concerning the Company and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1(g). Parent shall use reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as possible after its filing and to maintain its effectiveness for so long as shall be required for the issuance of Parent Common Stock pursuant to the Offer and the Merger. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) under the Securities Act.
(h) If, between the date of this Agreement and the Acceptance Time, any change in the number of issued or outstanding shares of Company Common Stock or Parent Common Stock shall occur as a result of a reclassification, recapitalization, share split (including a reverse share split), or combination, exchange or readjustment of shares, or any share dividend or share distribution (including any dividend or distribution of securities convertible into Company Common Stock or Parent Common Stock) with a record date during such increaseperiod, the Per Share Amount shall be equitably adjusted to reflect such change.
(i) No fraction of a share of Parent Common Stock will be issued in connection with the Offer, but in lieu thereof each case holder of Company Common Stock that would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) shall in its sole discretion and lieu of such fractional share, be paid an amount of cash (rounded to the nearest whole cent), without interest, equal to the consent product of: (i) such fraction, multiplied by (ii) the volume weighted average trading price of Parent Common Stock on Nasdaq for the Companyfive (5) consecutive trading days ending on the trading day immediately preceding the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 7.1 and none of the events or conditions set forth in Annex I A (the "Offer Conditions") shall have occurred and be continuing, the Purchaser shallexisting, as promptly as reasonably practicable following practicable, but in no event later than five (5) Business Days after the public announcement of the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) ), the Offer to purchase for cash all of the issued and outstanding shares of Company Common Stock Stock, at the Offer PricePer Share Amount. The obligations of the Purchaser to Acquisition shall accept for payment and to pay for any all outstanding shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock been validly tendered and not withdrawn pursuant to the Offer promptly after at the earliest time following the expiration of the Offer (subject that all conditions to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)Offer shall have been satisfied or waived by Acquisition. The Offer shall be made by means obligation of an offer Acquisition to accept for payment, purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase pay for shares of Company Common Stock tendered pursuant to the Offer is not conditioned on any financing arrangements or shall be subject only to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer Conditions, including the condition that a number of shares of Company Common Stock representing that number of shares of Company Common Stock which would equal more than fifty percent (50%) of the shares of Company Common Stock then issued and outstanding on a fully-diluted basis shall provide for an initial have been validly tendered and not withdrawn prior to the expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”"Minimum Condition"). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right to waive or modify increase the terms price per share of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration Common Stock payable in the Offer, to waive any of the conditions of the Offer or to make any other changes in the terms and conditions of the Offer (ivPROVIDED that, unless previously approved by the Company (such approval to be obtained from the Company Board) decrease in writing, no change may be made which decreases the Per Share Amount payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any which imposes conditions to the Offer in addition to the Offer Conditions or which broadens the scope thereof). The Per Share Amount shall not have been satisfied or waived (be paid net to the seller in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offercash, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shallLESS any required withholding of taxes, upon the written request terms and subject to such conditions of the Company, extend Offer. The Company agrees that no shares of Company Common Stock held by the Offer for one Company or more periods not to exceed an aggregate any of ten (10) its subsidiaries will be tendered in the Offer. "Business Days if, as of Day" means any expiration date, all of the conditions set forth in clause (ii) of Annex I (day other than subparagraph (c) thereof) are not satisfiedSaturday, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, Sunday or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyfederal holiday.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Huntsman Packaging Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VIII and none of the events or conditions set forth in Annex I A shall have occurred and be continuingexisting, the Purchaser shallParent shall cause Subcorp to commence, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Subcorp shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “"Exchange Act”")) ), as promptly as reasonably practicable, but in no event later than five business days, after the Offer to purchase for cash all date of this Agreement, the shares of Common Stock at the Offer PriceOffer. The obligations of the Purchaser Parent shall cause Subcorp to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreementpayment, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and Subcorp shall accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay forpayment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer promptly after at the expiration earliest time following the initial Expiration Date at which time all conditions of the Offer (subject to the applicable provisions shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of Rule 14d-11 under the Exchange Act, to the extent applicableCompany Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). The Offer Subcorp shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase not accept for payment any shares of Company Common Stock tendered pursuant to the Offer is unless there shall have been validly tendered and not conditioned on any financing arrangements or subject withdrawn prior to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date Expiration Date such number of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement shares of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree Company Common Stock that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, satisfy the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waivedCondition. The Purchaser Subcorp expressly reserves the right to increase the Per Share Amount and to waive or modify the terms any condition of the Offer, except that, without the Minimum Condition. Without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Subcorp shall (i) amend or waive satisfaction of the Minimum Condition, (ii) not decrease the Offer Price, (iii) Per Share Amount or change the form of consideration payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions Offer in addition to those set forth in Annex I A, change or waive the Minimum Condition or, except as provided in any manner adverse to Section 1.1(c) or (d), extend the holders expiration of the shares of Common StockOffer beyond the initial Expiration Date, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders Company Shareholders. The Per Share Amount shall be paid less any required withholding of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shallTaxes, upon the written request of the Company, extend the Offer for one terms and subject to satisfaction or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all waiver of the conditions of the Offer set forth in clause Annex A. The Company agrees that no shares of Company Common Stock held by the Company or any of its subsidiaries will be tendered in the Offer.
(iib) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of Subcorp shall file with the Securities and Exchange Commission (“SEC”the "Commission") or the staff thereof applicable a Tender Offer Statement on Schedule TO with respect to the Offer on the date the Offer is commenced, which shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (ztogether with any supplements or amendments thereto, collectively, the "Offer Documents") on one or more occasions (and use its reasonable best efforts to cause the Offer Documents to be disseminated to the Company Shareholders in accordance in all such occasions aggregating not more than twenty Business Days) beyond material respects with the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all applicable requirements of the conditions United States federal securities laws. Parent and Subcorp will use their respective reasonable best efforts to cause the Purchaser’s obligation Offer Documents to accept payment comply in all material respects with the applicable requirements of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.United States federal securities
Appears in 1 contract
The Offer. (a) Provided Barrick shall promptly publicly announce its intention to amend the Original Offer, subject to the terms and conditions set forth below, to increase the consideration payable thereunder to, at the election of a Shareholder, $22.50 in cash or 0.8269 of a Barrick Common Share plus $0.05 in cash, in each case subject to pro ration as described in the Original Offer, provided that this Agreement the maximum cash consideration will be $1,343,618,621 and the maximum share consideration will be 333,180,480 Barrick Common Shares (in each case calculated on a fully diluted basis). Barrick will continue to offer the "Rollover Option", as defined and described in the Original Offer. The conditions of the Original Offer will be replaced by the conditions set out in Schedule A. The Notice of Variation shall also contain an amendment to Section 13(e) of the Offer portion of the Circular to replace the phrase "in its sole discretion" with the phrase "in its reasonable discretion". Barrick will not have been terminated be required to make the Offer in any jurisdiction where it would be illegal to do so.
(b) Barrick shall mail the Notice of Variation in accordance with Section 8.1 of this Agreement the Securities Act (Ontario) and none regulations thereunder and all other applicable securities laws, including the applicable securities laws of the events set forth in Annex I shall have occurred and be continuingUnited States, the Purchaser shall(collectively, "Applicable Securities Laws") to each registered holder of Shares as promptly soon as reasonably practicable and, in any event, not later than 11:59 p.m. (Toronto time) on January 5, 2006 (such time on such date being referred to herein as the "Latest Mailing Time"); provided, however, that if the mailing of the Notice of Variation is delayed by reason of Placer Dome not having provided to Barrick the Directors' Circular referred to in Section 2.1(h)(vi) as well as any information pertaining to Placer Dome that is necessary for the completion of the Notice of Variation by Barrick, or not having provided Barrick with such other assistance in the preparation of the Notice of Variation as may be reasonably requested by Barrick in order that the Notice of Variation comply in all material respects with Applicable Securities Laws, then the Latest Mailing Time shall be extended to 11:59 p.m. on the fifth business day following the execution date on which Placer Dome supplies such necessary documents, information or other assistance.
(c) Prior to the printing of this Agreement the Notice of Variation, Barrick shall provide Placer Dome and its counsel with a reasonable opportunity to review and comment on it, recognizing that whether or not such comments are appropriate will be determined by Barrick, acting reasonably.
(but d) Barrick agrees that, provided all of the conditions to the Offer set out in Schedule A hereto shall have been satisfied or waived, Barrick shall take up and pay for all of the Shares tendered under the Offer promptly and in any event no later than seven two business days after following the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 time at which it becomes entitled to take up such Shares under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to applicable Laws.
(ie) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)Applicable Securities Laws and shall expire not earlier than midnight (Toronto time) on January 19, 2006 and not later than the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) 20th day following the commencement Latest Mailing Time, subject to the right of Barrick to extend from time to time the period during which Shares may be deposited under the Offer (within such time, as it may be extended, is referred to herein as the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”"Expiry Time"). The Purchaser and Barrick shall use all reasonable efforts to consummate the Parent agree that they shall not terminate or withdraw the Offer unlessOffer, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions subject to the Offer described terms and conditions hereof and thereof.
(f) It is understood and agreed that Barrick may, in Annex I have not been satisfied its sole discretion, modify or earlier waived. The Purchaser expressly reserves the right to waive any term or modify the terms condition of the Offer, except that; provided that Barrick shall not, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company Placer Dome, increase or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of decrease the Minimum Tender Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, decrease the consideration per Share, decrease the maximum cash consideration or maximum share consideration, decrease the number of Shares in respect of which the Offer is made, change the form of consideration payable under the Offer (viother than to increase the total consideration per Share and/or add additional consideration) amend or otherwise vary the Offer or any terms or conditions thereof (which for greater certainty, subject to Section 2.1(g), does not include a waiver of the conditions set forth a condition) in Annex I in any a manner which is adverse to the holders Shareholders.
(g) Barrick may waive the Minimum Tender Condition only if: (i) there shall have been validly deposited pursuant to the Offer and not withdrawn at the Expiry Time that number of Shares which constitutes at least 60% of the shares of Common StockShares outstanding calculated on a fully diluted basis, or (viiii) amend any other term Barrick obtains such relief from the United States Securities and Exchange Commission as may be necessary to allow Barrick to take up Shares on more than one date and there shall have been validly deposited pursuant to the Offer and not withdrawn at an expiry date of the Offer in a manner that is materially adverse to the holders number of Shares which constitutes at least 50% of the shares of Common StockShares outstanding calculated on a fully diluted basis. Notwithstanding In the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth circumstances described in clause (ii), subject to Applicable Securities Laws, Barrick will use its commercially reasonable efforts to extend the time for deposits to the Offer after any such take-up to permit Shareholders holding, in the aggregate, 662/3% of the Shares outstanding calculated on a fully diluted basis to accept the Offer.
(h) The obligation of Annex I Barrick to amend the Original Offer is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of Barrick and any or all of which may be waived by Barrick in whole or in part in its sole discretion (other than subparagraph (cthe condition set out in Section 2.1(h)(iv) thereofbelow, which must be waived if Barrick has failed to use its reasonable best efforts to obtain such assurances, and the condition set out in Section 2.1(h)(ix) are not satisfiedbelow, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise which may be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together waived only with the Common Stock then owned by Parent consent of Placer Dome) without prejudice to any other right it may have under this Agreement and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision which conditions shall be deemed to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchasermaking of the amended Offer:
(i) the obligations of Barrick hereunder shall not have been terminated pursuant to Section 7.1;
(ii) the Barrick Common Shares to be issued to Shareholders shall have been conditionally approved for listing on the TSX and Barrick shall not have been advised that such Barrick Common Shares would not be approved for listing, thensubject to notice of issuance, by the NYSE;
(iii) no change, effect, event, circumstance, occurrence or state of facts (other than a change, effect, event, circumstance, occurrence or state of facts caused by Barrick, a Barrick Subsidiary or any Person acting jointly or in each such caseconcert with Barrick) shall have occurred that would render it impossible for one or more of the conditions set out on Schedule A hereto to be satisfied;
(iv) assurances satisfactory to Barrick, acting reasonably, shall have been received by Barrick that all waivers, rulings or orders necessary for Barrick to amend the Purchaser Original Offer and to mail to the Shareholders the Notice of Variation have been or will be obtained from all applicable securities commissions or other regulatory authorities;
(v) the Placer Dome Board of Directors shall extend have unanimously recommended that Shareholders accept the Offer for up to ten (10) Business Days. In and shall not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner that has substantially the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change same effect or taken any other condition to the Offer) and extend the Offer to the extent required by law action or made any other public statement in connection with the Offer inconsistent with such increaserecommendation;
(vi) the Placer Dome Board of Directors shall have prepared and approved in final form, printed for distribution to Shareholders and delivered to Barrick for mailing with the Notice of Variation an amended directors' circular (the "Directors' Circular") unanimously recommending that Shareholders accept the Offer;
(vii) Placer Dome shall have complied in each case all respects with its covenants in Section 6.2 and in all material respects with its sole discretion other covenants in this Agreement;
(viii) all representations and without warranties of Placer Dome set forth in this Agreement shall be true and correct in all material respects at the consent time of the Companymaking of the amended Offer; and
(ix) no cease trade order, injunction or other prohibition at Law shall exist against Barrick making the Offer or taking up or paying for Shares deposited under the Offer. Prior to printing the Directors' Circular, Placer Dome shall provide Barrick with a reasonable opportunity to review and comment on it, recognizing that whether or not such comments are appropriate will be determined by Placer Dome, acting reasonably. The Directors' Circular shall include a copy of the written fairness opinion of each of CIBC World Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇, Sachs & Co. referred to below.
Appears in 1 contract
Sources: Support Agreement (Placer Dome Inc)
The Offer. (a) Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallArticle VIII, as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven business days ten (10) Business Days after the date of execution and delivery of this Agreement), 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 for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment Merger Sub to, and pay forMerger Sub shall, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at for all of the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the outstanding shares of Company Common Stock (other conditions than Excluded Shares) for a price per share of Company Common Stock equal to the Offer described Price (as adjusted as provided in Annex I have not been satisfied Section 2.1(f)), subject to any deduction or earlier waivedwithholding of Taxes required by applicable Law. The Purchaser expressly reserves the right to waive or modify the terms of date on which Merger Sub commences the Offer, except thatwithin the meaning of Rule 14d-2 promulgated under the Exchange Act, without is referred to in this Agreement as the prior written consent of “Offer Commencement Date”.
(b) As promptly as practicable on the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall later of: (i) amend or waive satisfaction the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Minimum Condition, Offer and (ii) decrease the Offer Price, (iii) change the form earliest date as of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any which each of the conditions set forth in Annex I in any manner adverse to (the holders of the “Offer Conditions”) shall have been satisfied or waived, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment all shares of Company Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse Stock tendered pursuant to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time and not validly withdrawn). The obligation of Merger Sub to time, accept for such period or periods payment shares of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions Company Common Stock tendered pursuant to the Offer shall not have been satisfied be subject only to the satisfaction or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request waiver of each of the Company, extend Offer Conditions (and shall not be subject to any other conditions). As promptly as practicable after the Offer acceptance for one or more periods not to exceed an aggregate of ten (10) Business Days if, as payment of any expiration date, all shares of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Company Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding Merger Sub shall pay for such shares of Company Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the CompanyStock.
Appears in 1 contract
Sources: Merger Agreement (Blyth Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VII hereof and none of the events set forth in Annex I A hereto (the "Offer Conditions") shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (practicable, but in any no event no later than seven business days ten Business Days after the execution and delivery of this Agreement)date hereof, the Purchaser will commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and including the rules and regulations promulgated thereunder thereunder, the "Exchange Act") a tender offer (the “Exchange Act”)"Offer") the Offer to purchase for cash all shares of the shares of Company Common Stock at a price per share of the Company Common Stock of $14.50 net to the Seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto. The Offer shall be made by means of an offer to purchase containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto and the Offer PriceDocuments (as defined hereinafter). The obligations acceptance for payment, purchase and payment for shares of Company Common Stock pursuant to the Offer shall be referred to as the "consummation of the Offer."
(b) The obligation of the Purchaser to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration Expiration Date and not withdrawn prior to such Expiration Date shall be subject only to the satisfaction or waiver of the Offer Conditions, specifically including the Offer Condition that at least that number of shares of Company Common Stock representing at least a majority of the total issued and not withdrawn outstanding shares of Company Common Stock on a "fully diluted basis" shall be subject to (i) there being have been validly tendered and not withdrawn prior to 5:00 p.m. New York City time, on the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis Expiration Date (the “"Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto"). “Fully-Diluted Basis” "Fully diluted basis" shall mean, as of any date, the number of the shares of Company Common Stock that are issued and outstanding, together with the shares of Company Common Stock that may be issued by the Company pursuant to warrants, options, rights, rights or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding exercisable, including the shares conversion of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreementall convertible securities, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyif any.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall8.1, as promptly as reasonably practicable practicable, but in no event later than the fifth business day following the execution public announcement of this Agreement (but in any event no later than seven business days after the execution and delivery terms of this Agreement), Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedOffer. Acquisition shall, and Parent shall cause Acquisition to, subject only to the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all prior satisfaction or waiver of the shares of Common Stock at the Offer Price. The obligations conditions of the Purchaser to Offer, accept for payment and Shares validly tendered as soon as it is legally permitted to do so under applicable law. As promptly as practicable after such acceptance, Acquisition shall, subject to applicable law, pay for such Shares. The Per Share Amount payable in the Offer shall be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Acquisition shall not, without the consent of the Special Committee, accept for payment any shares of Common Stock validly Shares tendered pursuant to the Offer on or prior to the expiration unless a number of the Offer and not withdrawn Shares shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final expiration of the Offer such that, upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the owners of Shares representing at least 81.07% of the Fully Diluted Shares (as defined on Section 9.9) (the "First Minimum Condition"). In addition to the First Minimum Condition, the obligation of Acquisition to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions (i) that a number of shares Shares shall have been validly tendered and not withdrawn prior to the expiration date of Common Stock whichthe Offer such that, together with upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the shares owners of Common Stock then beneficially owned by the Parent or the Purchaser, represents Shares representing at least eighty percent (80%) 90% of the shares Fully Diluted Shares as of Common Stock outstanding on a Fully-Diluted Basis the expiration date of the Offer (the “"Second Minimum Condition”") and (ii) the other conditions that are set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant A to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and . It is agreed that the prior satisfaction or waiver by the Parent or the Purchaser of the Second Minimum Condition and the other conditions set forth in Annex I hereto as A are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances unless the failure of any expiration date such condition was caused by any breach by Parent or Acquisition of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)this Agreement. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right in its sole discretion to waive waive, in whole or modify in part, at any time or from time to time, any such condition (including, without limitation, the terms of Second Minimum Condition, but not including the First Minimum Condition) or to increase the cash price per Share payable in the Offer; PROVIDED that no change may be made that decreases the Per Share Amount payable in the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, (iv) decrease reduces the maximum number of shares of Common Stock sought Shares to be purchased in the Offer, (v) impose additional Offer or imposes conditions to the Offer, (vi) amend any of the conditions Offer in addition to those set forth in Annex I A. If requested to do so by Parent or Acquisition, the Company (acting at the direction of the Special Committee) may, in the sole discretion of the Special Committee, waive the First Minimum Condition and Acquisition may thereafter accept for payment any manner adverse and all Shares validly tendered and not withdrawn prior to the holders of the shares of Common Stock, or (vii) amend any other term expiration of the Offer in a manner that whether or not the First Minimum Condition is materially adverse to the holders satisfied.
(b) The initial expiration date of the shares Offer shall be midnight on the 20th business day following commencement of Common Stockthe Offer. Notwithstanding the foregoingThe foregoing notwithstanding, the Purchaser may (but shall not be obligated to)Acquisition may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (yi) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“the "SEC”") or the staff thereof applicable to the Offer, (ii) if at any scheduled expiration date any of the conditions to the Offer and set forth in paragraphs (za) on one - (e) of Annex A have not been satisfied or more occasions (waived, until such time as all of such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) conditions shall have been satisfied or waived, or (yiii) of this sentence, if, on such expiration date, in the event all of the conditions to the Purchaser’s obligation to accept payment Offer shall have been satisfied or waived, other than the Second Minimum Condition, for a period or periods aggregating not more than 40 business days after the later of (A) the initial expiration date of the Common Stock are satisfied or earlier waived, but Offer and (B) the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock date on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver which all of the conditions set forth in clauses paragraphs (da) and - (fe) (excluding of Annex A shall have been satisfied or waived. If at any willful or intentional breach of any material obligation scheduled expiration date of the Company) on Annex I Offer the Second Minimum Condition shall not have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in writing), Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for a period or periods aggregating not more than 40 business days, subject to the right of its right Acquisition and Parent to terminate the this Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v)pursuant to Section 8.1. In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date if at any scheduled expiration date of the events Offer, a condition set forth in subparagraph paragraph (c) or (d) of Annex I shall have occurred and be continuing and A hereto shall not have been waived by satisfied but all of the Purchaserother conditions set forth in paragraphs (a) - (e) of Annex A shall then have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in each writing) and so long as the Company is using its reasonable best efforts to cause such caseconditions to become satisfied, the Purchaser Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for up to ten (10) Business Days. In an additional 20 business days, subject to the event the Minimum Condition is satisfied right of Acquisition and the Purchaser purchases the shares of Common Stock Parent to terminate this Agreement pursuant to Section 8.1. Subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1, Acquisition shall not terminate or withdraw the Offer prior to any scheduled expiration date of the Offer, the Purchaser including as extended pursuant to this Section 1.1; PROVIDED, HOWEVER, that Acquisition may, in at its sole discretionoption, provide a “subsequent offering period” terminate and withdraw the Offer if, after such extensions required to be made under this Section 1.1(b), the Offer has expired in accordance with its terms.
(c) As soon as practicable on the date of commencement of the Offer, Parent and Acquisition shall file with the Securities and Exchange Commission (the "Commission")
(i) a Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will contain the offer to purchase, the form of the related letter of transmittal and related summary advertisement and (ii) a Rule 14d-11 promulgated under 13E-3 Transaction Statement with respect to the Exchange Act Offer and the other transactions contemplated hereby (a “Subsequent Offering Period”the Schedule 14D-1, the Schedule 13E-3, the offer to purchase and such other documents, together with any supplements or amendments thereto, the "Offer Documents"). In additionParent, Acquisition and the Purchaser may increase Company each agrees promptly to correct any information provided by it for use in the Offer Price (but not change any other condition Documents if and to the Offer) extent that any such information shall have become false or misleading in any material respect and extend Parent and Acquisition each further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the Commission and to be disseminated to holders of Shares, in each case as and to the extent required by law in connection applicable federal securities laws. The Special Committee and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the Commission and shall be provided with any written or verbal comments Parent, Acquisition and their counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after receipt of such increase, in each case in its sole discretion and without the consent of the Companycomments.
Appears in 1 contract
The Offer. (a) Provided Subject only to any Laws or Orders preventing commencement of the Offer, provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article 8 hereof and none of that the events Company complies with its covenants set forth in Annex I shall have occurred and be continuingthis Agreement, the Purchaser then Acquisition Corp. shall, as promptly as reasonably practicable following the execution of this Agreement (practicable, but in any event no not later than seven business days the tenth (10th) Business Day after the execution and delivery of this Agreementdate hereof (unless due to a Force Majeure Event), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) an offer (the Offer "Offer") to purchase for cash all of the shares Common Shares at a price of $9.60 per share in cash (such price, or such higher price per Common Share as may be paid in the Offer, the "Offer Price"), subject to the condition that the holders of Common Stock at Shares have validly tendered and not withdrawn prior to the expiration of the Offer Price. The obligations a number of Common Shares which, together with the Common Shares beneficially owned by Parent or Acquisition Corp., represents at least 51% of the Purchaser Common Shares determined on a Fully-Diluted Basis (the "Minimum Condition") and subject to the other conditions set forth in Annex A hereto. Subject to the prior satisfaction of the Minimum Condition and the prior satisfaction (or waiver in writing by Acquisition Corp.) of the other conditions of the Offer set forth in Annex A, Acquisition Corp. shall use reasonable best efforts to consummate the Offer in accordance with its terms and to accept for payment and to pay for any shares all of the Common Stock Shares that are tendered pursuant to the Offer as soon as it is legally permitted to do so under applicable Law. The date on which all of the Common Shares validly tendered pursuant to the Offer and not withdrawn have been accepted for payment and paid for is referred to herein as the "Offer Payment Date" The obligations of Acquisition Corp. to commence the Offer and to accept for payment and pay for the Common Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)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 and having only Agreement, the Minimum Condition and the other conditions set forth in Annex I A hereto. Parent and Purchaser agree that The Offer shall remain open until 5:00 p.m., New York City time, on the day immediately following the twentieth Business Day of the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as such term is defined in Rule 14d-1 promulgated 14d-1(g)(3) under the Exchange Act), each a “Business Day”) following unless Acquisition Corp. shall have extended the commencement of time for which the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”)is open pursuant to this Section 1.01 or as may be required by Law. The Purchaser Parent and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition Corp. expressly reserves reserve the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Acquisition Corp. shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) decrease the number of Common Shares sought, increase or decrease the required percentage of, or waive, the Minimum Condition, change the form of or reduce the consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions Offer or add to the Offer, (vi) or amend any of the conditions of the Offer set forth in Annex I A hereto in any manner which would be adverse to the holders of the shares of Common StockShares (other than with respect to insignificant changes or amendments); provided, or however, (viii) amend any other term if on the initially scheduled expiration date of the Offer in a manner that is materially adverse (as it may be extended) any of the conditions to the holders of the shares of Common Stock. Notwithstanding the foregoingOffer have not been satisfied or waived, the Purchaser may (but shall not be obligated to)Acquisition Corp. may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for in its sole discretion, extend the Offer (provided that no such period extension pursuant to this sentence shall extend the Offer beyond the date of the termination of this Agreement pursuant to Article 8), (ii) if on or periods before the initially scheduled expiration date of time the Offer (as it may be extended) any of the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall have not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided thatwaived, the Purchaser shall, upon Company shall have the written request of the Company, option to require Acquisition Corp. to extend the Offer for one or more periods not a period of up to exceed an aggregate the number of ten (10) Business Days if, as equal to (X) ten minus (Y) the number of Business Days of any Force Majeure Period and minus (Z) the number of Business Days of any Commencement Delay Election, if the Company is not in material breach of its covenants under this Agreement, the Company provides notice to Parent and Acquisition Corp. of its election to extend the expiration date, all date of the conditions set forth in Offer pursuant to clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable this Section 1.01 and the Company pays certain Expenses of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities Parent and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) Acquisition Corp. pursuant to Section 9.01 (the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d"Company Extension Election") and (fiii) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser Acquisition Corp. may, in its sole discretion, provide a “subsequent offering period” period in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”)Act. In addition, the Purchaser Offer Price may increase be increased, and, in connection therewith, the Offer Price (but not change any other condition to the Offer) and extend the Offer may be extended, to the extent required by law in connection with such increaseapplicable federal securities laws, in each case in its sole discretion and without the consent of the Company.. Notwithstanding the foregoing, (A)
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallArticle 10, as promptly as reasonably practicable following after the execution of this Agreement date hereof (but and in any event no later than seven business days after the execution and delivery of this Agreementon or before June 19, 2015), commence (Acquisition Sub shall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 19341934 Act, as amended, and the rules and regulations promulgated thereunder a tender offer (the “Exchange ActOffer”)) the Offer to purchase for cash any (subject to the Minimum Condition) and all of the outstanding shares of Common Company Stock at the Offer Price. The obligations of the Purchaser a price per share equal to accept for payment and $20.00 net to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock whichseller in cash, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis without interest (the “Minimum ConditionOffer Price”) ), subject to any deduction or withholding of Taxes required by applicable Law, on the terms and (ii) subject to the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date . The consummation of the Offer, and the Purchaser shall, in accordance with the terms obligation of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser Acquisition Sub to accept for payment and pay for, all for any shares of Common Company Stock validly tendered and not withdrawn pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer promptly after and not properly withdrawn prior to the expiration Expiration Date that number of shares of Company Stock (excluding shares of Company Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) that, together with the number of shares of Company Stock (if any) then owned by Parent or Acquisition Sub, represents a majority of the shares of Company Stock then outstanding (collectively, the “Minimum Condition”), (ii) this Agreement not having been terminated in accordance with its terms (the “Termination Condition”) and (iii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). b) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing that describes the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that of the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)Agreement, including the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”)Conditions. The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of Unless previously approved by the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)in writing, neither the Parent nor the Purchaser and Acquisition Sub shall not: (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iiiii) change the form of consideration payable in the Offer, (iviii) decrease change the number of shares of Common Stock sought to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or conditions (i) or (ii) set forth in Annex I, (v) impose additional conditions add any condition to the OfferOffer or any term that is adverse to the holders of Company Stock, (vi) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the 1934 Act or (vii) modify, supplement or amend any other term or condition of the conditions set forth Offer in Annex I in any a manner adverse to the holders of Company Stock.
(c) Unless extended in accordance with the shares terms of Common Stockthis Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is 20 Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the 1934 Act (such time and date, the “Initial Expiration Date”), or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond if the Initial Expiration Date from time has been extended in accordance with this Agreement, on the date to time, for such period or periods of time as which the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at Offer has been so extended (the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest such later time and date at to which the Offer, as so Initial Expiration Date has been extended by the Purchaser, shall so expire); provided thatin accordance with this Agreement, the Purchaser shall“Expiration Date”).
(d) If, upon (i) as of any then-scheduled Expiration Date, any Offer Condition has not been satisfied or, to the written request of the Companyextent waivable by Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, then Acquisition Sub shall extend the Offer for one or more successive periods not of up to exceed an aggregate of ten (10) 20 Business Days ifeach, as of any expiration date, all of the conditions set forth in clause or (ii) of Annex I (other than subparagraph (c) thereof) are prior to any then-scheduled Expiration Date, any Offer Condition has not been satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the extent waivable by Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub may extend the Offer for up to 20 Business Days, in the case of each of clauses (i) and (z) on one or more occasions (all ii), the length of each such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise period to be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned determined by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basisin its sole discretion; provided, however, that Purchaser’s decision subject to Section 10.01(b)(i), Acquisition Sub shall not (A) be required to extend the Offer in beyond the case of this clause End Date or (zB) shall constitute a waiver of extend the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of Offer beyond the End Date without the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v)’s consent. In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser Acquisition Sub shall extend the Offer for up any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NASDAQ Global Market; provided, however, that subject to ten Section 10.01(b)(i), Acquisition Sub shall not (x) be required to extend the Offer beyond the End Date or (y) extend the Offer beyond the End Date without the Company’s consent.
(e) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 10) Business Days. In If this Agreement is terminated pursuant to Article 10, Acquisition Sub shall promptly terminate the event the Minimum Condition is satisfied Offer and the Purchaser purchases shall not acquire the shares of Common Company Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Acceptance Time, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Stock that have not then been purchased in the Offer to the registered holders thereof.
(f) As soon as practicable on the date of the commencement of the Offer, Parent and Acquisition Sub shall file with the Purchaser maySEC, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated 14d-3 under the Exchange Act 1934 Act, a Tender Offer Statement on Schedule TO with respect to the Offer (a together with all amendments, supplements and exhibits thereto, the “Subsequent Offering PeriodSchedule TO”). In addition, the Purchaser may increase The Schedule TO shall include as exhibits (without limitation) the Offer Price to Purchase, a form of letter of transmittal, a form of summary advertisement and a form of notice of guaranteed delivery (but not change any other condition the Schedule TO and the documents included therein pursuant to the Offer) and extend which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). The Company shall furnish all information concerning the Company and its Affiliates to Parent, and provide such other assistance, as may be reasonably requested by Parent to be included therein. Parent and Acquisition Sub shall promptly cause the Offer Documents to be disseminated to holders of Company Stock, as and to the extent required by law all applicable Laws, including the 1934 Act. If, prior to the Acceptance Time, any event occurs with respect to Parent or any Parent Subsidiary, or any change occurs with respect to other information included by Parent in the Offer Documents (other than information supplied the Company for inclusion therein), on the one hand, or any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Offer Documents, on the other hand, upon becoming aware of such information Parent or the Company, as applicable, shall promptly notify the other of such event and shall cooperate with the other in the prompt filing with the SEC of any necessary amendment or supplement to the Offer Documents and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders. Parent shall promptly notify the Company upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Offer Documents and shall provide the Company with copies of all correspondence between Parent and its Representatives, on the one hand, and the SEC, on the other hand. Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Offer Documents. Notwithstanding the foregoing, prior to filing or mailing the Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Parent shall (i) provide the Company with an opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) consider in good faith all comments reasonably proposed by the Company and (iii) not file or mail such document or respond to the SEC prior to receiving the approval of the Company, which approval shall not be unreasonably withheld, delayed or conditioned. Parent shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the 1934 Act or any applicable foreign or state securities laws and the rules and regulations thereunder in connection with such increase, in each case in its sole discretion the Offer and without the consent of the CompanyMerger.
Appears in 1 contract
Sources: Merger Agreement (Geeknet, Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser Merger Subsidiary shall, as promptly as reasonably --------- practicable after the date hereof, but in no event later than five business days following the execution public announcement of this Agreement (but in any event no later than seven business days after the execution and delivery terms of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder an offer (the “Exchange Act”)"Offer") the Offer to purchase for cash all of the outstanding shares of Common Stock common stock, par value $.001 per share (the "Shares"), including the associated Rights (defined in Section 4.1(c)), of the Company at a price of $29.25 per Share (including the Offer Priceassociated Right), net to the seller in cash. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) the condition that there being shall be validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate Offer prior to the expiration date of the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to a number of Shares which, together with the Offer promptly after the expiration Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the Offer total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (subject if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase "Fully Diluted Shares") (the “Offer "Minimum Condition") and to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that Merger Subsidiary expressly reserve the Offer right to Purchase will provide a statement in all appropriate places therein to waive the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described and to make any change in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms or conditions of the Offer, except ; provided that, -------- without the prior written consent of the Company (such consent to Company, no change may be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change made which changes the form of consideration payable in to be paid, decreases the Offer, (iv) decrease price per Share or the number of shares of Common Stock Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, changes or waives the Minimum Condition, extends the Offer (vexcept as set forth in the following sentence), or makes any other change to any condition to the Offer set forth in Annex I which is adverse to the holders of Shares. Subject to the terms of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) impose additional of the conditions to the Offer, Merger Subsidiary shall accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; provided that Merger Subsidiary may -------- (vi) amend any of or, if the conditions set forth in clauses (a), (b), (c), (d) and (i) of Annex I in any manner adverse to the holders of the shares of Common Stockexist, or (viishall) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, scheduled expiration date of the Offer or any extension thereof any of the conditions to the Offer shall not have been satisfied, until such time as such conditions are satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time waived, and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, Merger Subsidiary may extend the Offer for one or more periods not to exceed an aggregate a further period of ten (10) Business Days if, as time of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond 20 business days to meet the latest expiration that would otherwise be permitted under clause objective (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and which is not withdrawn) pursuant a condition to the Offer) that there be validly tendered, in accordance with the terms of the Offer, prior to the expiration date of the Offer (as so extended) and not withdrawn a number of Shares, which together with the Common Stock Shares then owned by Parent and the PurchaserMerger Subsidiary, represents less than ninety percent (at least 90%) % of the outstanding shares Fully Diluted Shares.
(b) As soon as practicable on the date of Common Stock 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 a FullySchedule 14D-Diluted Basis; provided, however, that Purchaser’s decision l with respect to extend the Offer in which will contain the case of this clause (z) shall constitute a waiver offer to purchase and form of the conditions set forth in clauses related letter of transmittal (dtogether with any supplements or amendments thereto, collectively the "Offer Documents") and (fii) (excluding cause the Offer Documents to be disseminated to holders of Shares. Parent, Merger Subsidiary and the Company each agree promptly to correct any willful information provided by it for use in the Offer Documents if and to the extent that it shall have become false or intentional breach of misleading in any material obligation respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-l prior to its being filed with such increase, in each case in its sole discretion and without the consent of the CompanySEC.
Appears in 1 contract
Sources: Merger Agreement (Platinum Technology International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 8.01 and none of the events set forth in Annex I A hereto shall have occurred and or be continuing, Purchaser shall commence the Purchaser shall, Offer as promptly as reasonably practicable after the date hereof, but in no event later than within five business days of the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that there shall have been validly tendered and not withdrawn prior to the expiration of the Offer at least the number of shares of Company Common Stock and shares of Company Preferred Stock (determined as if shares of Company Preferred Stock have been converted into shares of Company Common Stock) that when added to the Shares already owned by Parent shall constitute two-thirds of the then outstanding shares of Company Common Stock on a fully diluted basis and also shall be subject to the satisfaction of each of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made which decreases the price per Share payable in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which changes the form of consideration paid by Purchaser for the Shares, which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which makes any other change in the terms of the Offer that is materially adverse to the holders of the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the execution 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 satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this Agreement 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 of Company Common Stock and Company 3 Preferred Stock validly tendered and not withdrawn pursuant to the Offer, together with the shares of Company Common Stock and Company Preferred Stock then owned by Parent, equals 80% or more, but less than 90%, of the outstanding shares of Company Common Stock and 80% or more, but less than 90%, of each series of Company Preferred Stock, in each case, on a fully diluted basis. If, on the initial scheduled expiration date of the Offer, the waiting period under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (but in any event no later than seven the "HSR Act"), shall not have expired or been terminated, then Purchaser shall extend the Offer from time to time until five business days after the execution expiration or termination of the applicable waiting period under the HSR Act, subject to the right of Parent, Purchaser or the Company to terminate this Agreement pursuant to the terms hereof. The price per Share payable in the Offer shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and delivery subject to the conditions of this Agreement)the Offer. Purchaser shall pay, commence (within as promptly as practicable after expiration of the meaning Offer and acceptance for payment of the tendered Shares, for all Shares validly tendered and not withdrawn. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, the Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14d-2 14e-1(c) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")
(b) As promptly as reasonably practicable on the Offer to purchase for cash all date of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date commencement of the Offer, the Purchaser shall, in accordance shall file with the terms of SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer Schedule 14D-1 shall be made contain or shall incorporate by means of reference an offer to purchase (the “"Offer to Purchase”") containing and forms of the terms set forth in this Agreement related letter of transmittal and having only any related summary advertisement (the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that Schedule 14D-1, the Offer to Purchase will provide a statement in and such other documents, together with all appropriate places therein supplements and amendments thereto, being referred to herein collectively as the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the "Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”Documents"). The Parent, Purchaser and the Parent Company agree that they shall not terminate or withdraw to correct promptly any information provided by any of them for use in the Offer unlessDocuments that shall have become false or misleading, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions and Parent and Purchaser further agree to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are take all steps necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the OfferSchedule 14D-1, as so extended by corrected, to be filed with the PurchaserSEC, shall so expire); provided that, and the Purchaser shall, upon the written request of the Company, extend the other Offer for one or more periods not to exceed an aggregate of ten (10) Business Days ifDocuments, as so corrected, to be disseminated to holders of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent applicable federal securities laws.
(c) Promptly following Purchaser's acceptance for payment of the CompanyShares, Parent shall provide to Purchaser, or cause Purchaser to be provided, with sufficient funds to pay in cash the purchase price for such Shares.
Appears in 1 contract
Sources: Merger Agreement (Hochtief Ag)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none no event shall have occurred or circumstance shall exist which constitutes a failure to satisfy any of the events conditions set forth in Annex I A hereto, Subsidiary shall have occurred and be continuing, commence the Purchaser shall, Offer as promptly as reasonably practicable practicable, but in no event later than the fifth business day following the execution public announcement of this Agreement (but in any event no later than seven business days after the execution and delivery terms of this Agreement), 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 for cash all of the shares of Common Stock at the Offer Price. The obligations obligation of the Purchaser Subsidiary to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to the condition that a number of Shares representing not less than 75% of the Company's outstanding voting power (iassuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) there being shall have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”) "), and (ii) the obligation of Subsidiary to commence the Offer and accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the other conditions set forth in Annex I A hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock It is agreed that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I A hereto as are for the sole benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any expiration date such condition. Subsidiary expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition, to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED that Subsidiary may only waive the Minimum Condition as long as Subsidiary purchases at least a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) and that, unless previously approved by the Purchaser shallCompany in writing, no change may be made that decreases the price per Share payable in accordance with the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares that Subsidiary offers to purchase in the Offer below a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel), imposes conditions to the Offer in addition to those set forth in Annex A hereto or otherwise amends the terms of the OfferOffer in any way that would be materially adverse to holders of Shares. Subject to the next sentence, consummate Subsidiary covenants and agrees that, subject to the terms and conditions of this Agreement, including, without limitation, the conditions of the Offer and set forth in Annex A hereto, Subsidiary shall accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock Shares which have been validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject as soon as it is permitted to the do so under applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stocklaw. Notwithstanding the foregoing, the Purchaser Subsidiary (i) may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond to purchase Shares in excess of the Initial Expiration Date from time Shares required to time, for such period or periods of time as satisfy the Purchaser reasonably believes are necessary Minimum Condition up to cause the conditions to be satisfied if, at tenth business day following the Initial Expiration Date, any date on which all conditions to the Offer shall not first have been satisfied or waived waived, provided that, by virtue of making any such extension, Subsidiary shall be deemed to waive and thereafter shall not be entitled to assert any of the conditions to the consummation of the Offer contained in subsections (b), (c), (d) and (e) to Annex A hereto, (ii) shall extend the Offer at least until 11:59 p.m. New York City time on the sixth business day following the delivery to Parent of a Notice of Superior Proposal (as defined in which event Section 6.8) and (iii) shall extend the term “Initial Expiration Date” Offer at least until the expiration of the period set forth in paragraph (d) or (e) of Annex A if a notice of breach has been delivered in accordance therewith. The Per Share Amount payable in the Offer shall mean be paid net to the latest time seller in cash, upon the terms and subject to the conditions of the Offer.
(b) As soon as practicable on the date at which of commencement of the Offer, as so extended by the Purchaser, Parent and Subsidiary shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten file (10i) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of with the Securities and Exchange Commission (“the "SEC”") or the staff thereof applicable a Tender Offer Statement on Schedule 14D-1 with respect to the Offer and (zii) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond with the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant appropriate Canadian authorities any required filings with respect to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer which in the case of this clause both (z) shall constitute a waiver of the conditions set forth in clauses (di) and (fii) will contain the offer to purchase, form of the related letter of transmittal and related documents published or filed by Parent or Subsidiary (excluding together with any willful supplements or intentional breach of amendments thereto, the "Offer Documents"). Parent, Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that any such information shall have become false or misleading in any material obligation respect and Parent and Subsidiary each further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the appropriate Canadian authorities and to be disseminated to holders of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC and the appropriate Canadian authorities and shall be provided with any comments Parent, Subsidiary and their counsel may receive from the SEC or the appropriate Canadian authorities with respect to the Offer Documents promptly after receipt of such increase, in each case in its sole discretion and without the consent of the Companycomments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall9.1, as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven business days 10 Business Days) after the execution date hereof, Merger Sub shall, and delivery of this Agreement)Parent shall cause Merger Sub 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.
(b) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior is subject to the expiration of terms and the Offer and not withdrawn shall be subject to satisfaction or waiver (ias provided in Section 2.1(c) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%below) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto(the “Offer Conditions”). “Fully-Diluted Basis” shall mean, as of any date, On the number of the shares of Common Stock issued terms and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant subject to the Stock Option Agreement). Subject to the terms conditions of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser Merger Sub shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to Merger Sub to, accept for payment and pay for, for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) promptly on or after the expiration of the Offer Expiration Date (subject to the applicable provisions of and in any event within three business days (calculated as set forth in Rule 14d-11 14d-1(g)(3) under the Exchange Act, to the extent applicable)). The Offer shall be made by means acceptance for payment of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Company Common Stock pursuant to and subject to the conditions of the Offer is not conditioned on any financing arrangements or subject referred to any financing condition. Unless extended in accordance with this Section 1.1(a), Agreement as the “Offer Closing,” and the date and time at which the Offer shall provide for an initial expiration date of twenty (20) business days (Closing occurs is referred to in this Agreement as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and the Parent agree pay for any and all shares of Company Common Stock that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer described in Annex I have not been satisfied or earlier waivedOffer. The Purchaser Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective controlled Affiliates shall, tender any shares of Company Common Stock held by them into the Offer.
(c) Parent and Merger Sub expressly reserves reserve the right to waive or modify the terms any of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of Offer Conditions other than the Minimum Condition, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, unless otherwise provided in this Agreement or previously approved by the Company in writing, Parent and Merger Sub shall not: (iii) decrease the Offer Price, (iii) Price or change the form of consideration payable in the Offer, (ivii) decrease the maximum number of shares of Company Common Stock subject to or sought to be purchased in the Offer, (viii) impose additional conditions on the Offer in addition to the OfferOffer Conditions or amend, (vi) amend modify or supplement any of the conditions set forth condition in Annex I in any a manner adverse to the holders of Stockholders, (iv) waive, modify or amend the shares of Common StockMinimum Condition, or (viiv) amend any other term of the Offer in a manner that is materially adverse to the holders Stockholders or (vi) extend or otherwise change the Expiration Date except as required or permitted by Section 2.1(e). The Offer may not be terminated prior to the Expiration Date, unless this Agreement is terminated or withdrawn in accordance with Section 9.1.
(d) On the date the Offer is commenced, Merger Sub shall, and Parent shall cause Merger Sub to, file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”) and cause the Offer Documents to be disseminated to the Stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of the shares Company Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply in all material respects with the Exchange Act, the rules and regulations thereunder, and other requirements of Common Stockapplicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company, the Company Subsidiary and the Stockholders that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 2.1(d), including communication of the Offer to the record and beneficial Stockholders. Each of the parties agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the Stockholders, in each case as and to the extent required by applicable Law. Parent and Merger Sub shall provide the Company and its counsel with any comments (including a summary of any oral comments) that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable efforts to respond promptly to any such SEC comments.
(e) Unless extended pursuant to and in accordance with the terms of this Agreement , the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Agreement or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) if on the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial then-effective Expiration Date, the Minimum Condition has not been satisfied or any conditions to of the other Offer shall Conditions have not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerby Parent or Merger Sub if permitted hereunder, as so extended by the Purchaser, shall so expire); provided that, the Purchaser then Merger Sub shall, upon and Parent shall cause Merger Sub to, extend the written request Offer on one or more occasions in consecutive increments of not more than 10 Business Days each (the Companylength of such period to be determined by Parent and Merger Sub in their discretion), or for such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Conditions, other than the Minimum Condition), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any minimum period required by any ruleapplicable Law, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the its staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating NASDAQ or its staff; provided that Merger Sub shall not more than twenty Business Days) beyond the latest expiration that would otherwise in any event be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision required to extend the Offer in beyond the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business DaysOutside Date. In the event that this Agreement is terminated pursuant to Section 9.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Minimum Condition is satisfied and the Purchaser purchases the Offer, shall not acquire any shares of Company Common Stock pursuant to the OfferOffer and shall cause any depositary acting on behalf of Merger Sub to return, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In additionapplicable Law, the Purchaser may increase the Offer Price (but not change any other condition all Tendered Shares to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyregistered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in paragraphs (a) through (i) of Annex I A hereto shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), shall commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than the tenth business day after the initial public announcement of Purchaser's intention to purchase for cash all commence the Offer. The initial scheduled expiration date shall be 20 business days following the commencement of the shares of Common Stock at the Offer PriceOffer. The obligations obligation of the Purchaser to accept for payment Shares (and to pay for any shares of Common Stock validly associated Rights) tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least the number of Shares that, when added to Shares already owned by Parent, 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) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and not withdrawn also shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration satisfaction of the Offer that number each of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I A hereto. “Fully-Diluted Basis” shall meanPurchaser expressly reserves the right to waive any such condition, as of to increase the price per Share (and associated Right) payable in the Offer, and to make any date, other changes in the number terms and conditions of the shares Offer; provided, however, that, without the consent of Common Stock issued and outstandingthe Company, together with (A) Purchaser shall not waive the shares of Common Stock that may be issued by the Company pursuant to warrantsMinimum Condition or, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant subject to the Stock Option Agreement). Subject to the terms of following sentence, extend the Offer and this Agreement, (B) no change may be made which decreases the price per Share (and associated Right) or changes the prior satisfaction form of consideration payable in the Offer or waiver by which reduces the Parent maximum number of Shares (and associated Rights) to be purchased in the Offer or which imposes conditions to the Purchaser of the Minimum Condition and the other conditions Offer in addition to those set forth in Annex I A hereto or which otherwise adversely affects the holders of Shares (and associated Rights). Purchaser may, without the consent of the Company, (i) extend the Offer for additional periods of not more than 10 business days each beyond any scheduled expiration of the Offer set in compliance with this Section 2.01, if, at the initial or any extended scheduled expiration of the Offer (as the case may be), any of any expiration date the conditions to Purchaser's obligation to accept for payment Shares (and associated Rights) shall not be satisfied or waived; provided that Purchaser shall not be permitted to extend the Offer (without the consent of the Company) pursuant to this clause (i) beyond the 89th day following the commencement of the Offer, provided, further, that if, prior to the Purchaser shall, in accordance with 89th day following the terms commencement of the Offer, consummate any applicable waiting period under the HSR Act has not expired or been terminated or clearance has not been received under the German Law Against Restraints on Competition with respect to the Transactions, then Purchaser shall be permitted to extend the Offer (without the consent of the Company) pursuant to this clause (i) until the earlier of (A) the fifth business day following the later of the expiration or termination of any applicable waiting period under the HSR Act and accept the receipt of clearance under the German Law Against Restraints on Competition and (B) the 120th day following commencement of the Offer; (ii) extend the Offer for payment any period required by any rule, regulation or interpretation of the Securities and pay forExchange Commission (the "SEC"), and Parent shall cause or the Purchaser staff thereof, applicable to the Offer, (iii) extend the Offer so that the Offer remains open for at least five business days after any disclosure of an Acquisition Proposal, or (iv) 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), (ii) or (iii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment and pay forShares have been permanently satisfied or irrevocably waived, all shares but the number of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer is less than 90% of outstanding Shares on a fully diluted basis. In addition, at the initial or any extended expiration date of the Offer, Purchaser shall extend the Offer at the request of the Company for additional periods of not more than 10 business days each beyond such scheduled expiration of the Offer set in compliance with this Section 2.01, if, at such scheduled expiration date of the Offer, any of the conditions to Purchaser's obligation to accept for payment Shares (and associated Rights) shall not be satisfied or waived; provided that Purchaser shall in no event be required to extend the Offer beyond the 89th day following the commencement of the Offer, provided, further, that if, prior to the 89th day following the commencement of the Offer, any applicable waiting period under the HSR Act has not expired or been terminated or clearance has not been received under the German Law Against Restraints on Competition with respect to the Transactions, then the Purchaser may be required to extend the Offer until the earlier of (A) the fifth business day following the later of the expiration or termination of any applicable waiting period under the HSR Act and the receipt of clearance under the German Law Against Restraints on Competition and (B) the 120th day following commencement of the Offer. The Per Share Amount shall, subject to applicable withholding of taxes in accordance with this Agreement and the Offer, be net to the seller in cash, upon the terms and subject to the conditions of this Agreement and the Offer. Subject to the terms and conditions of this Agreement, Purchaser shall accept for payment and pay for all Shares (and associated Rights) validly tendered and not withdrawn promptly after following the expiration of the Offer (subject Offer. If the payment equal to the applicable provisions 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 Rule 14d-11 under the Exchange ActCompany, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the extent satisfaction of Purchaser that such taxes either have been paid or are not applicable).
(b) Parent and Purchaser shall file all written communications relating to the Offer made prior to commencement of the Offer, from and including the first public announcement, with the SEC under cover of Schedule TO. As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Offer Schedule TO shall be made contain or shall incorporate by means of reference an offer to purchase (the “"Offer to Purchase”") containing and forms of the terms set forth in this Agreement related letter of transmittal and having only any related summary advertisement (the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that Schedule TO, the Offer to Purchase will provide a statement in and such other documents, together with all appropriate places therein supplements and amendments thereto, being referred to herein collectively as the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the "Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”Documents"). The Parent, Purchaser and the Parent Company agree that they shall not terminate or withdraw to correct promptly any information provided by any of them for use in the Offer unlessDocuments that shall have become false or misleading, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions and Parent and Purchaser further agree to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are take all steps necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the OfferSchedule TO, as so extended by corrected, to be filed with the PurchaserSEC, shall so expire); provided that, and the Purchaser shall, upon the written request of the Company, extend the other Offer for one or more periods not to exceed an aggregate of ten (10) Business Days ifDocuments, as so corrected, to be disseminated to holders of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable federal securities laws. Parent and Purchaser shall provide the Company and its counsel with any comments Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such increase, in each case in its sole discretion and without comments.
(c) Parent shall provide or cause to be provided to the consent of Purchaser on a timely basis the Companyfunds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Chirex Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 As promptly as practicable after the date of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution June 18, 2012, Merger Sub shall (and delivery of this Agreement), Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer ), a cash tender offer to purchase for cash any and all of the issued and outstanding shares of the Company Common Stock at for $3.70 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to such offer in accordance with this Agreement, the Offer Price“Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”). The obligations Subject to the terms and conditions of the Purchaser this Agreement, Parent shall cause Merger Sub to accept for payment payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not validly withdrawn pursuant to the Offer promptly and in any event not more than the fourth business day following the Expiration Date (as defined below). Merger Sub 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 in accordance with Section 8.1.
(b) The obligation of Merger Sub to accept for payment, purchase and pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior (and not validly withdrawn pursuant to the expiration of the Offer and not withdrawn Offer) shall only be subject to the satisfaction or waiver by Parent or Merger Sub (in their sole discretion) pursuant to the terms hereof of (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not validly withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already beneficially owned by Parent or Merger Sub, if any, shall be greater than a majority of the shares of Company Common Stock then outstanding on a fully diluted basis (assuming the exercise of all options and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof (other than any Company Stock Options and Company Stock Awards that will be cashed out pursuant to Section 3.3 and any Top-Up Option Shares issuable upon the exercise of the Top-Up Option)) and (ii) the other conditions set forth in Annex I heretoA hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer Conditions”). “Fully-Diluted Basis” Parent and Merger Sub expressly reserve the right (but shall meannot be obligated) at any time or from time to time, as of in their sole discretion, to amend or waive in whole or in part, any dateTender Offer Condition (other than the Minimum Condition, which may not be amended, modified or waived without the number prior written consent of the shares of Common Stock issued and outstandingCompany), together with to increase the shares of Common Stock that may be issued by Per Share Amount payable in the Company pursuant to warrants, options, rightsOffer, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to make any other changes in the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer; provided, the Purchaser shallthat, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except thatApplicable Laws, without the prior written consent of the Company Company, no change may be made that decreases the Per Share Amount (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereofexcept as provided in Section 1.1(h)), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, (iv) decrease imposes conditions to the Offer in addition to the Tender Offer Conditions, decreases the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions subject to the Offer, (vi) amend any of reduces the conditions set forth in Annex I time period during which the Offer shall remain open, or modifies, amends or supplements the Offer or the Tender Offer Conditions in any manner adverse to the holders of Company Shareholders.
(c) Upon the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse terms and subject to the holders of the shares of Common Stock. Notwithstanding the foregoingconditions thereof, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not remain open until midnight New York City time at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been satisfied extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or waived as required by Applicable Law or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Initial Expiration Date” shall mean the latest time and date at which as the Offer, as so extended by the Purchaserextended, shall so may expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following after the execution of this Agreement (date hereof, but in any no event no later than seven business days ten Business Days after the execution and delivery of this Agreement)date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder an offer (the “Exchange Act”)"OFFER") the Offer to purchase for cash 14,392,003 Shares (which shall include, for purposes of this Agreement, (i) all Shares issuable in respect of exercisable, in-the-money Company Options which have been "conditionally exercised" by the shares holder thereof for purposes of Common Stock at participating in the Offer Price. The obligations of the Purchaser to accept for payment Offer, and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or (ii) all Shares issued prior to the expiration of the Offer and not withdrawn upon the conversion of any convertible securities or upon the exercise of any options or warrants) (such number of Shares, the "MAXIMUM NUMBER") at a price of $70.00 per Share, net to the seller in cash (such price, as may hereafter be increased, the "OFFER PRICE"). The obligation of Acquisition Sub to accept for payment any Shares tendered pursuant to the Offer shall be subject to (i) there being validly tendered and not withdrawn prior only to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any The initial expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “twentieth Business Day”) Day following the commencement of the Offer (within the meaning of determined under Rule 14d-2 14d-1(g)(3) promulgated under the Exchange 1934 Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition Sub expressly reserves the right to waive or any of the conditions to the Offer, modify the terms of the Offer, except and increase the Offer Price; PROVIDED that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Acquisition Sub shall not (i) amend increase or waive satisfaction of reduce the Minimum ConditionMaximum Number, (ii) decrease reduce the Offer Priceprice per Share to be paid pursuant to the Offer, (iii) add to the conditions set forth in Annex I or modify any condition set forth in Annex I, (iv) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, or (v) impose additional conditions to otherwise amend the Offer, (vi) amend any of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common StockShares. Notwithstanding the foregoing, the Purchaser may (but Acquisition Sub shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all any period required by applicable law. If any of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are Offer is not satisfied or earlier waived, but the number waived on any scheduled expiration date of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser Acquisition Sub shall extend the Offer from time to time until such conditions are satisfied or waived; PROVIDED that (i) each such extension of the Offer shall be for up to a period of not more than ten (10) Business Days, and (ii) Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Termination Date. In Subject to the event foregoing and upon the Minimum Condition is satisfied terms and subject to the Purchaser purchases the shares conditions of Common Stock pursuant to the Offer, Acquisition Sub shall accept for payment and pay for, as promptly as practicable after the Purchaser mayexpiration of the Offer, all Shares validly tendered and not withdrawn (including if no Shares are validly tendered and not withdrawn), but not in excess of the Maximum Number.
(b) As soon as practicable on the date of commencement of the Offer, BMS and Acquisition Sub shall file with the SEC a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") with respect to the Offer (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). BMS, Acquisition Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. BMS and Acquisition Sub agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC. BMS and Acquisition Sub shall deliver or cause to be delivered to the Company, or such other Person as the Company shall designate, the Offer Documents (and any amendments thereto) as so corrected, in such quantities as shall be necessary for dissemination to all holders of Shares and Company Options. The Company shall, at its sole discretionexpense, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase cause the Offer Price Documents (but not change and any other condition amendments thereto) to the Offer) be disseminated to holders of Shares and extend the Offer Company Options, in each case as and to the extent required by law applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents prior to their being filed with the SEC or disseminated to the holders of Shares and Company Options. BMS and Acquisition Sub shall provide the Company and its counsel with any comments or other communications, whether written or oral, that BMS, Acquisition Sub or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments or other communications.
(c) Each certificate for Shares issued to Acquisition Sub representing Shares accepted for purchase and paid for by Acquisition Sub in connection with such increasethe Offer shall bear a legend in substantially the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDER AGREEMENT, in each case in its sole discretion and without the consent of the CompanyDATED SEPTEMBER 19, 2001, AMONG IMCLONE SYSTEMS INCORPORATED, BRISTOL-MYERS SQUIBB COMPANY AND BRISTOL-MYERS ▇▇▇▇▇▇ ▇▇▇▇▇GICS COMPANY, A COPY ▇▇ ▇▇▇▇▇ ▇▇▇ BE OBTAINED FROM THE CORPORATE SECRETARY OF IMCLONE SYSTEMS INCORPORATED.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section SECTION 8.1 and subject to the other provisions of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallAgreement, as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven business days five (5) Business Days after the execution date of the public announcement by Purchaser and delivery the Company of this Agreement), Acquisition Sub shall, and Purchaser shall cause Acquisition Sub to, commence (within the meaning Offer. The obligation of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedAcquisition Sub to, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of Purchaser to cause Acquisition Sub to, commence the Offer to purchase and accept for cash all payment, and pay for, any Shares of the shares of Company Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly properly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior only to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanA attached hereto (the "OFFER CONDITIONS"), as any of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that which may be issued waived, in whole or in part, by Acquisition Sub, in its sole discretion. Acquisition Sub expressly reserves the Company pursuant right to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to modify the terms of the Offer and in a manner not inconsistent with this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Acquisition Sub shall not (i) amend waive or waive satisfaction otherwise modify the Minimum Condition so as to reduce the minimum number of Shares that Acquisition Sub will accept in the Offer to an amount constituting less than fifty-one percent (51%) of the Minimum Conditionaggregate outstanding Shares (assuming the exercise of all options to purchase, and the conversion or exchange of all securities convertible or exchangeable into, Shares outstanding as of the consummation of the Offer), (ii) decrease reduce the Offer PricePer Share Amount, (iii) impose any conditions to the Offer in addition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, Offer or (vi) amend accept for payment or pay for any of the conditions set forth in Annex I in any manner adverse Shares pursuant to the holders of the shares of Common StockOffer prior to January 4, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock2000. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Acquisition Sub may, without the consent of the Company Company, (i) extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Datescheduled or extended expiration date of the Offer, any conditions to of the Offer Conditions shall not have been be satisfied or waived, until such time as such conditions are satisfied or waived (but, in which event any event, Acquisition Sub shall not, without the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the prior written request consent of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten beyond the Cut-Off Date (10as defined in SECTION 8.1(B) Business Days ifhereof), as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer but, in any event, Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Cut-Off Date, or (iii) extend the Offer for a period of up to five (5) Business Days if, on any scheduled expiration date on which the Offer Conditions shall have been satisfied or waived, the number of Shares which have been validly tendered and not withdrawn represent more than 50% of the aggregate outstanding Shares (zassuming the exercise of all options to purchase, and the conversion or exchange of all securities convertible or exchangeable into Shares which are outstanding as of the consummation of the Offer), but less than 90% of the then issued and outstanding Shares. Purchaser and Acquisition Sub each agree that Acquisition Sub will not terminate the Offer between scheduled expiration dates (except in the event that this Agreement is terminated) on and that, in the event that Acquisition Sub will otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due to the failure of one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to Offer Conditions, unless this Agreement shall have been terminated, Acquisition Sub shall, and Purchaser shall cause Acquisition Sub to, extend the Purchaser’s obligation to accept payment of Offer until such date as the Common Stock are Offer Conditions have been satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned such later date as required by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basisapplicable federal securities law; provided, provided however, that Purchaser’s decision nothing herein shall require Acquisition Sub to extend the Offer beyond the Cut-Off Date (as defined in SECTION 8.1(B) hereof). Subject to the case of this clause (z) shall constitute a waiver terms and conditions of the conditions set forth Offer in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, ifAcquisition Sub shall, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer cause Acquisition Sub to, accept for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.payment all Shares validly
Appears in 1 contract
Sources: Merger Agreement (Bolle Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with pursuant to Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall10.1 hereof, as promptly as reasonably practicable practicable, but in no event later than fifteen Business Days following the public announcement of the terms of this Agreement (which public announcement shall occur no later than the first Business Day following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) a tender offer (as it may be amended from time to time as permitted by this Agreement, the Offer "OFFER") to purchase for cash all of the shares of Company Common Stock issued and outstanding at a price of U.S. $35.00 per share, net to the Offer Priceseller in cash (such price, or such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "OFFER PRICE"). The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or shall be subject only to the condition that there shall be validly tendered (other than by guaranteed delivery where actual delivery has not occurred) in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that withdrawn, a number of shares of Company Common Stock whichthat, together with the shares of Company Common Stock then beneficially owned by the Parent or the and/or Purchaser, represents at least eighty percent (80%) a majority of the shares of Company Common Stock outstanding on a Fully-Diluted Basis fully diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights to acquire, and securities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the time of determination) (the “Minimum Condition”"MINIMUM CONDITION") and (ii) to the satisfaction or waiver by Purchaser as permitted hereunder of the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer "OFFER TO PURCHASE") and the related letter of transmittal, each in form reasonably satisfactory to Purchase”) the Company, containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. I. Parent and Purchaser agree that the Offer to Purchase will provide a statement state at least in all the summary term sheet and in appropriate places therein in the Offer to the effect Purchase that the "Purchaser’s 's obligation to purchase shares of Company Common Stock pursuant to under the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)." Without limiting the foregoing, effective upon Consummation of the Offer, the Offer shall provide for an initial holder of such Company Common Stock will sell and assign to Purchaser all right, title and interest in and to all of the shares of Company Common Stock tendered (including, but not limited to, such holder's right to any and all dividends and distributions, if any, with a record date before, and a payment date after, the scheduled or extended expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under date). Purchaser expressly reserves the right, subject to compliance with the Exchange Act, each a “Business Day”) following the commencement to waive any of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described and to make any change in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of or conditions to the Offer, except ; provided that, without the prior written consent of the Company (such Company, which consent to must be expressly authorized by the board of directors of the Company or a duly authorized committee thereof(the "COMPANY'S BOARD OF DIRECTORS"), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.be waived or
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall8.1, as promptly as reasonably practicable practicable, but in no event later than the fifth business day following the execution public announcement of this Agreement (but in any event no later than seven business days after the execution and delivery terms of this Agreement), Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedOffer. Acquisition shall, and Parent shall cause Acquisition to, subject only to the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all prior satisfaction or waiver of the shares of Common Stock at the Offer Price. The obligations conditions of the Purchaser to Offer, accept for payment and Shares validly tendered as soon as it is legally permitted to do so under applicable law. As promptly as practicable after such acceptance, Acquisition shall, subject to applicable law, pay for such Shares. The Per Share Amount payable in the Offer shall be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Acquisition shall not, without the consent of the Special Committee, accept for payment any shares of Common Stock validly Shares tendered pursuant to the Offer on or prior to the expiration unless a number of the Offer and not withdrawn Shares shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final expiration of the Offer such that, upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the owners of Shares representing at least 81.07% of the Fully Diluted Shares (as defined on Section 9.9) (the "First Minimum Condition"). In addition to the First Minimum Condition, the obligation of Acquisition to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions (i) that a number of shares Shares shall have been validly tendered and not withdrawn prior to the expiration date of Common Stock whichthe Offer such that, together with upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the shares owners of Common Stock then beneficially owned by the Parent or the Purchaser, represents Shares representing at least eighty percent (80%) 90% of the shares Fully Diluted Shares as of Common Stock outstanding on a Fully-Diluted Basis the expiration date of the Offer (the “"Second Minimum Condition”") and (ii) the other conditions that are set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant A to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and . It is agreed that the prior satisfaction or waiver by the Parent or the Purchaser of the Second Minimum Condition and the other conditions set forth in Annex I hereto as A are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances unless the failure of any expiration date such condition was caused by any breach by Parent or Acquisition of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)this Agreement. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right in its sole discretion to waive waive, in whole or modify in part, at any time or from time to time, any such condition (including, without limitation, the terms of Second Minimum Condition, but not including the First Minimum Condition) or to increase the cash price per Share payable in the Offer; provided that no change may be made that decreases the Per Share Amount payable in the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, (iv) decrease reduces the maximum number of shares of Common Stock sought Shares to be purchased in the Offer, (v) impose additional Offer or imposes conditions to the Offer, (vi) amend any of the conditions Offer in addition to those set forth in Annex I A. If requested to do so by Parent or Acquisition, the Company (acting at the direction of the Special Committee) may, in the sole discretion of the Special Committee, waive the First Minimum Condition and Acquisition may thereafter accept for payment any manner adverse and all Shares validly tendered and not withdrawn prior to the holders of the shares of Common Stock, or (vii) amend any other term expiration of the Offer in a manner that whether or not the First Minimum Condition is materially adverse to the holders satisfied.
(b) The initial expiration date of the shares Offer shall be midnight on the 20th business day following commencement of Common Stockthe Offer. Notwithstanding the foregoingThe foregoing notwithstanding, the Purchaser may (but shall not be obligated to)Acquisition may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (yi) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“the "SEC”") or the staff thereof applicable to the Offer, (ii) if at any scheduled expiration date any of the conditions to the Offer and set forth in paragraphs (za) on one - (e) of Annex A have not been satisfied or more occasions (waived, until such time as all of such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) conditions shall have been satisfied or waived, or (yiii) of this sentence, if, on such expiration date, in the event all of the conditions to the Purchaser’s obligation to accept payment Offer shall have been satisfied or waived, other than the Second Minimum Condition, for a period or periods aggregating not more than 40 business days after the later of (A) the initial expiration date of the Common Stock are Offer and (B) the date on which all of the conditions set forth in paragraphs (a) - (e) of Annex A shall have been satisfied or earlier waived. If at any scheduled expiration date of the Offer the Second Minimum Condition shall not have been satisfied, but then, at the number request of shares the Company (acting at the direction of Common Stock validly tendered (the Special Committee, which request shall subsequently be confirmed in writing), Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for a period or periods aggregating not withdrawn) more than 40 business days, subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1. In addition, if at any scheduled expiration date of the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent a condition set forth in paragraph (90%c) or (d) of Annex A hereto shall not have been satisfied but all of the outstanding shares other conditions set forth in paragraphs (a) - (e) of Common Stock on a Fully-Diluted BasisAnnex A shall then have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in writing) and so long as the Company is using its reasonable best efforts to cause such conditions to become satisfied, Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for up to an additional 20 business days, subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1. Subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1, Acquisition shall not terminate or withdraw the Offer prior to any scheduled expiration date of the Offer, including as extended pursuant to this Section 1.1; provided, however, that Purchaser’s decision to extend Acquisition may, at its option, terminate and withdraw the Offer in the case of if, after such extensions required to be made under this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iiiSection 1.1(b), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth Offer has expired in subparagraph accordance with its terms.
(c) As soon as practicable on the date of Annex I commencement of the Offer, Parent and Acquisition shall file with the Securities and Exchange Commission (the "Commission")
(i) a Tender Offer Statement on Schedule 14D- 1 with respect to the Offer which will contain the offer to purchase, the form of the related letter of transmittal and related summary advertisement and (ii) a Rule 13E-3 Transaction Statement with respect to the Offer and the other transactions contemplated hereby (the Schedule 14D-1, the Schedule 13E-3, the offer to purchase and such other documents, together with any supplements or amendments thereto, the "Offer Documents"). Parent, Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that any such information shall have occurred become false or misleading in any material respect and Parent and Acquisition each further agrees to take all steps necessary to cause the Offer Documents as so corrected to be continuing filed with the Commission and shall not have been waived by the Purchaser, thento be disseminated to holders of Shares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable federal securities laws. The Special Committee and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the Commission and shall be provided with any written or verbal comments Parent, Acquisition and their counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after receipt of such increase, in each case in its sole discretion and without the consent of the Companycomments.
Appears in 1 contract
Sources: Merger Agreement (Mycogen Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the terms and conditions of this Agreement and none of the events set forth in Annex I shall have occurred and be continuingAgreement, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven within ten business days after the execution and delivery date of this Agreement), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”)) ), the Offer Offer. On the terms and subject to purchase for cash all the prior satisfaction or waiver of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and shall accept for payment all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the Expiration Date and shall pay for, the Offer Price for all such shares of Company Common Stock as soon as practicable after acceptance and in compliance with applicable laws. The obligation of the Parent shall cause and the Purchaser to accept for payment and pay for, all the Offer Price for shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer promptly after the expiration of the Offer (shall be subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I heretoto this Agreement (the “Offer Conditions”). Parent and Purchaser agree The first time that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase Purchaser accepts for payment shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer is not conditioned on any financing arrangements or subject referred to any financing condition. Unless extended in accordance with this Section 1.1(a), herein as the Offer shall provide for an “Acceptance Time.”
(b) The initial expiration date of twenty (20) the Offer shall be the 20th business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the day after commencement of the Offer (within the meaning of Rule determined in accordance with Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date and the time on which the Offer expires on such date, the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right right, subject to waive compliance with the Exchange Act, to waive, amend or modify the terms any term or condition of the OfferOffer in its sole discretion; provided, except however, that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser shall not:
(i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the Offer Price or decrease the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions pursuant to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause ;
(ii) of Annex I extend the Expiration Date except (other than subparagraph A) as required by applicable law (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) including for any period required by any rule, regulation, interpretation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable thereof), (B) that if, immediately prior to the scheduled Expiration Date, any condition to the Offer and (z) on one or more occasions (all such occasions aggregating has not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are been satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” extend the Expiration Date for one or more periods (not in excess of ten business days each) but in no event later than the Outside Date, or (C) in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC; provided, however, that, subject to the right of the Parent and the Purchaser to terminate this Agreement in accordance with Rule 14d-11 promulgated under Section 9.1, if immediately prior to any scheduled Expiration Date, one or more Offer Conditions have not been satisfied or waived by the Exchange Act Parent or the Purchaser, then at the request of the Company, the Parent shall cause the Purchaser to extend the Expiration Date for one or (a “Subsequent Offering Period”). In additionas needed) more consecutive periods of five business days each (or such shorter period as the Company may agree or such longer period as the Company and the Parent may agree) in order to permit the satisfaction of any such Offer Condition, except that if immediately prior to any scheduled Expiration Date, all Offer Conditions (except the Minimum Condition) have been satisfied or waived by the Parent or the Purchaser, then the Parent’s obligations to extend the Expiration Date shall be limited to causing the Purchaser to extend the Expiration Date for one period of ten business days to permit the satisfaction of the Minimum Condition, and if at the end of such ten business day period, the Minimum Condition continues to not be satisfied, to causing the Purchaser to extend the Expiration Date for one additional period of ten business days to permit the satisfaction of the Minimum Condition, after which, if the Minimum Condition remains unsatisfied, the Purchaser may increase shall not be required to extend the Expiration Date (it being understood that, in no event, shall the Parent or the Purchaser be required to extend the Expiration Date to a date that is later than the Outside Date notwithstanding anything to the contrary in this Agreement);
(iii) waive or change the Minimum Condition;
(iv) amend any term of the Offer Price in any manner materially adverse to the Company or to holders of shares of Company Common Stock; or
(but not change v) impose any other condition to the Offer) and extend the Offer to the extent required by law not set forth in connection with such increase, in each case in its sole discretion and without the consent of the Company.Annex I.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of Subject to the events conditions set forth in Annex I shall have occurred and be continuing, the Purchaser shallEXHIBIT A, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery date of this Agreement), Parent and Merger Sub shall commence (the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and deliver any payment for, any shares of Company Common Stock tendered pursuant to the Offer are subject to no conditions other than the conditions set forth in EXHIBIT A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (determined using Rule 14d-2 14d-1(g)(3) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized expressed in a resolution adopted by both the board of directors of Special Committee and the Company or a duly authorized committee thereofBoard), neither the Parent nor the Purchaser and Merger Sub shall not (i) amend reduce the amount of consideration per share of Company Common Stock or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable to be paid pursuant to the Offer or reduce the percentage of shares of Company Common Stock offered to be acquired in the Offer, (ivii) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions add to the Offer, (vi) amend any of the conditions set forth in Annex I EXHIBIT A or modify any condition set forth in EXHIBIT A in any manner adverse to the holders of Company Common Stock (other than the shares of Common Stock, Affiliate Shareholders) or (viiiii) otherwise amend any other term of the Offer in a any manner that is materially adverse to the holders of Company Common Stock (other than the Affiliate Shareholders). The Company agrees that no Company Common Stock held by the Company (including shares of Company Common StockStock held in treasury by the Company) will be tendered pursuant to the Offer. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Parent and Merger Sub may, without the consent of the Company Company, (i) extend the Offer, if at the scheduled expiration date of the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods any of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions Parent's and Merger Sub's obligation to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request purchase shares of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) Company Common Stock are not satisfied, but until such time as such conditions are reasonably capable of being satisfied in such periodor irrevocably waived, (yii) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer and (ziii) on one or more occasions (all such occasions aggregating extend the Offer for any reason for a period of not more than twenty Business Days) 5 business days beyond the latest expiration date that would otherwise be permitted under clause (xi) or (yii) of this sentence, if, on such expiration date, all of sentence but in no event ending later than the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (date set forth in Section 8.01(b)(i) and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by only so long as Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) Merger Sub shall constitute a waiver have waived each of the conditions set forth in clauses EXHIBIT A. In the event that Parent and Merger Sub are unable to consummate the Offer on the initial scheduled expiration date due to the failure of the conditions set forth in EXHIBIT A to be satisfied or waived, except to the extent that such conditions are incapable of being satisfied, Parent and Merger Sub shall not terminate the Offer and shall extend the Offer (dfor no more than 10 business days without the consent of the Special Committee) and set a subsequent scheduled expiration date, and shall continue to so extend the Offer under such circumstances and set subsequent scheduled expiration dates until the earlier of (fx) the date that such conditions are satisfied or waived and (excluding any willful or intentional breach of any material obligation of y) the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(vdate set forth in Section 8.01(b)(i). In addition, notwithstanding the foregoing, Parent and Merger Sub shall provide a "subsequent offering period", in accordance with Rule 14d-11 under the Exchange Act, of a number of days ending on the earliest to occur of (i) 20 business days following commencement of such subsequent offering period, (ii) the business day prior to the Closing Date (as defined in Section 1.04) and (iii) December 31, 2000, if extending the subsequent offering period beyond December 31, 2000 would reasonably be expected to adversely affect Parent. On the terms and subject to the provisions conditions of Section 8.1(b)(iii) of the Offer and this Agreement, if, on Parent and Merger Sub shall (i) if the Initial Expiration Date any of the events conditions set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not EXHIBIT A have been satisfied or waived by the Purchaser, then, in each such case, the Purchaser shall extend Parent and Merger Sub and the Offer has expired, accept for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the payment all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer, (ii) deliver payment for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub become obligated to purchase upon expiration of the Offer or initial period of the Offer, as applicable, as soon as practicable after such expiration and (iii) deliver payment for any shares of Company Common Stock validly tendered pursuant to the Offer during the subsequent offer period that Parent and Merger Sub are obligated to purchase promptly upon such tender. The parties agree and acknowledge that neither the acceptance for payment nor payment for any shares of Company Common Stock pursuant to the Offer will affect the Company's obligation to pay any dividends on such shares with a record date prior to such acceptance for payment or payment that may have been declared by the Company in accordance with the terms of this Agreement or prior to the date of this Agreement and which remain unpaid at the time of such acceptance for payment or payment. Parent will not issue certificates or scrip representing fractional shares pursuant to the Offer. Parent will pay cash in lieu of fractional shares in accordance with Section 2.02(d).
(b) As soon as practicable after the date of this Agreement and consistent with applicable law, Parent shall (i) file or submit for review on a confidential basis and ultimately file with the SEC a registration statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act and the information required pursuant to Rule 13e-3 under the Exchange Act, to register the offer and sale of Parent ADSs (as defined in Section 2.01(c)), as evidenced by Parent ADRs (as defined in Section 2.01(c)), and the Parent Ordinary Shares (as defined in Section 2.01(c)) underlying the Parent ADSs, pursuant to the Offer (as supplemented or amended, the Purchaser may"FORM F-4"); and (ii) together with Merger Sub and the Company, in its sole discretionconcurrently with the filing of the Form F-4, provide file with the SEC a “subsequent offering period” combined Rule 13e-3 Transaction Statement on Schedule 13E-3 and Tender Offer Statement on Schedule TO under cover of Schedule TO with respect to the Offer which shall contain or incorporate by reference, among other things, a preliminary or final prospectus, as the case may be, in accordance with Rule 14d-11 promulgated 14d-4(b) under the Exchange Act and a related letter of transmittal (a “Subsequent Offering Period”). In additionsuch combined Rule 13e-3 Transaction Statement on Schedule 13E-3 and Tender Offer Statement on Schedule TO under cover of Schedule TO, and the documents included or incorporated by reference therein, pursuant to which the Offer will be made, together with any supplements or amendments thereto, the Purchaser may increase "OFFER DOCUMENTS"); and (ii) as soon as practicable after the Form F-4 shall become effective cause the Offer Price Documents to be disseminated to holders of Company Common Stock. The Form F-4 shall comply in all material respects with the provisions of the Securities Act of 1933, as amended (but not change the "SECURITIES ACT"), and the Offer Documents shall comply in all material respects with the provisions of the Exchange Act, assuming the accuracy of the information provided in writing for inclusion therein by the Company. Each of Parent, Merger Sub and the Company shall (i) promptly correct any other condition information provided by it for use in the Form F-4 or the Offer Documents if and to the Offerextent that such information shall have become false or misleading in any material respect, (ii) take all steps necessary to amend or supplement the Form F-4 and extend the Offer Documents and (iii) cause the Form F-4 and the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the holders of Company Common Stock, in each case as and to the extent required by law in connection applicable Federal securities laws. The Company, the Special Committee and their respective counsels shall be given the opportunity to review the Form F-4 and the Offer Documents prior to filing with such increase, in each case in its sole discretion and without the consent of SEC. Parent shall provide the Company, the Special Committee and their respective counsels with a copy of any written comments or telephonic notification of any oral comments Parent or its counsel may receive from the SEC or its staff with respect to the Form F-4 and the Offer Documents promptly after the receipt of such comments. Parent and Merger Sub shall provide the Company, the Special Committee and their respective counsels with a reasonable opportunity to participate in all material communications with the SEC and its staff, including any material meetings and telephone conferences, relating to the Form F-4, the Offer Documents or this Agreement. If at any time after the date hereof this Agreement is terminated, Parent and Merger Sub agree that they shall amend the Offer Documents to reflect such termination.
Appears in 1 contract
Sources: Merger Agreement (Axa)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 and the other terms of this Agreement and (ii) none of the events set forth in Annex I A attached hereto shall have occurred and be are continuing, unless otherwise agreed by Parent and the Purchaser shallCompany, as promptly as reasonably practicable following the execution of this Agreement within ten (but in any event no later than seven business 10) days after the execution and delivery of this Agreement)date hereof, Parent shall cause Merger Sub 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 for cash all of the shares of Common Stock at the Offer PriceOffer. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered Each Share accepted by Merger Sub pursuant to the Offer on or shall be exchanged for the right to receive from Merger Sub the Merger Consideration (defined in Section 2.6(a) below). The initial expiration date of the Offer shall be the twentieth business day following commencement of the Offer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that at least a number of shares of Company Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, that represents at least eighty percent (80%) a majority of the shares of Company Common Stock outstanding on a Fully-Fully Diluted Basis (the “"Minimum Condition”) "), and (ii) to the other conditions set forth in Annex I ----------------- A hereto. “Fully-As used herein, "Fully Diluted Basis” " shall mean, as of any date, the number of the mean after taking into account all currently outstanding shares of Company Common Stock issued and outstandingassuming the exercise or conversion of all options, together with warrants, convertible securities and similar rights and the issuance of all shares of Company Common Stock that may be issued by the Company pursuant is obligated to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable issue thereunder other than pursuant to the Stock Transaction Option Agreement). Subject .
(b) Parent and Merger Sub expressly reserve the right to the terms waive any of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right and to waive amend or modify the terms of the Offer, except that, without the prior written consent of the Company Company, Merger Sub shall not (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereofand Parent shall not cause Merger Sub to), neither the Parent nor the Purchaser shall
(i) amend or waive satisfaction decrease the number of Shares sought in the Minimum ConditionOffer, (ii) decrease the Offer Price, (iii) change the form of consideration payable to be paid, (iii) waive or increase the Minimum Condition or impose material conditions to the Offer in the Offeraddition to those set forth in Annex A, (iv) decrease extend the number of shares of Common Stock sought Offer (except as set forth herein or in the Offer), or (v) impose additional make any other change to any of the terms and conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that which is materially adverse to the holders of Shares. Subject only to the shares terms of Common Stock. Notwithstanding the foregoingOffer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Merger Sub shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Purchaser 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, unless this Agreement is terminated pursuant to Article VIII, (x) Merger Sub may (but shall not be obligated to)in its sole discretion, without the consent of the Company and shall, at the request of the Company, extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or successive extension periods not in excess of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied 10 business days each if, at the Initial Expiration Datescheduled expiration date of the Offer or any extension thereof, any of the conditions to the Offer shall not have been satisfied or waived waived, until such times as such conditions are satisfied or waived, and (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, y) Merger Sub may extend the Offer for one or more periods not any period if and to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all the extent required by the applicable rules and regulations of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the United States Securities and Exchange Commission (“"SEC”) or the staff thereof applicable to "). In addition, Merger Sub may extend the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) after the acceptance of Shares thereunder for a further period of time beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) this Section by means of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with period under Rule 14d-11 promulgated under the Exchange Act Act, of not more than 20 business days to meet the objective (which is not a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend that there be validly tendered, in accordance with the terms of the Offer, prior to the expiration date of the Offer to the extent required (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by law in connection with such increaseParent and Merger Sub, in each case in its sole discretion and without the consent represents at least 90% of the CompanyShares outstanding on a Fully Diluted Basis.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VII and none of the events or conditions set forth in Annex I A (other than clause (e) of Annex A) shall have occurred and be continuingexisting and shall not have been waived by Parent or Merger Sub (the conditions set forth in Annex A, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement“Tender Offer Conditions”), Merger Sub shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean), as promptly as reasonably practicable after the date of this Agreement and in any date, event within 8 Business Days after the number date of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without Without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall (i) amend or waive satisfaction of the Minimum Condition, (ii) not decrease the Offer Price, (iii) Price or change the form of consideration payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional conditions to the OfferOffer in addition to the Tender Offer Conditions, (vi) amend any change or waive the Minimum Condition or, except as provided in Section 1.01(c), extend the expiration of the conditions set forth in Annex I in any manner adverse to Offer beyond the holders of the shares of Common Stockinitial Expiration Date, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders Company Stockholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any condition of the Offer, except the Minimum Condition. The Company agrees that no shares of Company Common Stock. Notwithstanding Stock held by the foregoingCompany or any of its Subsidiaries will be tendered in the Offer.
(b) Merger Sub shall file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the Purchaser may (but shall not be obligated to“Offer Documents”) and, subject to the Company’s compliance with Section 1.02(c), without cause the consent Offer Documents to be disseminated to the Company Stockholders in accordance with the applicable requirements of the Company extend U.S. federal securities laws. The Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Offer (x) beyond Documents if and to the Initial Expiration Date from time extent that it shall have become false or misleading in any material respect, and Parent further agrees to time, for such period or periods of time as the Purchaser reasonably believes are take all steps necessary to cause the conditions Offer Documents as so corrected to be satisfied iffiled with the SEC and disseminated to the Company Stockholders to the extent required by applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b) . The Company and its counsel shall be given the opportunity to review and comment on the Offer Documents sufficiently in advance of filing with the SEC or dissemination to the Company Stockholders.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the Initial end of the 20th Business Day after the date that the Offer is commenced (the “Expiration Date”), any conditions to unless Merger Sub shall have extended the period of time for which the Offer shall not have been satisfied is open pursuant to, and in accordance with, the two succeeding sentences or waived (as may be required by applicable Law, in which event the term “Initial Expiration Date” shall mean the latest time and date at which as the Offer, as so extended by may expire; provided, however, that Merger Sub may, without the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request consent of the Company, (i) extend the Offer for one or more periods of not to exceed an aggregate of ten (10) more than five Business Days if, as of at the scheduled Expiration Date, any expiration date, all of the conditions set forth in clause of the Offer shall not have been satisfied or waived; (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff of the SEC (the “SEC Staff”) thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) Offer; or (yiii) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Tender Offer Conditions are satisfied or earlier waived, but the number of shares of Company Common Stock that have been validly tendered (and not withdrawn) pursuant to withdrawn in the Offer, together with the any shares of Company Common Stock then owned by Parent and the PurchaserParent, represents is less than ninety percent (90%) % of the outstanding shares of Company Common Stock on Stock, commence a Fully-Diluted Basis; provided, however, that Purchaser’s decision subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three to extend 20 Business Days to acquire outstanding shares of Company Common Stock.
(d) Subject to the Offer in the case of this clause (z) shall constitute a waiver of the terms and conditions set forth in clauses (d) this Agreement and (f) (excluding any willful to satisfaction or intentional breach of any material obligation waiver of the CompanyTender Offer Conditions, Merger Sub shall, and Parent shall cause it to, as soon as practicable after the Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax) on Annex I and all shares of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not Company Common Stock that have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied validly tendered and the Purchaser purchases the shares of Common Stock not withdrawn pursuant to the Offer. If Merger Sub shall commence a subsequent offering period in connection with the Offer, the Purchaser may, in its sole discretion, provide a “Merger Sub shall accept for payment and pay for (after giving effect to any required withholding Tax) all additional shares of Company Common Stock validly tendered during such subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the provisions of this Agreement Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and none the Company shall issue a public announcement of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in any no event no later than seven business days five Business Days after the execution and delivery date of this Agreement)such announcement, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder Act) a tender offer (the “Exchange Act”)"OFFER") the Offer to purchase for cash all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the Offer Priceseller in cash without interest (the "PRICE PER SHARE"), subject to reduction only for any applicable withholding taxes. The obligations Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the Purchaser terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the "MINIMUM SHARES") being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the satisfaction of the other conditions set forth in Annex I ANNEX A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. “Fully-Diluted Basis” The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall mean(i) decrease the Price Per Share payable in the Offer, as of any date, (ii) decrease the number of the shares of Company Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable sought pursuant to the Offer below a majority of the Fully Diluted Shares of Company Common Stock Option Agreement). Subject or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the terms of Offer (including the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto ANNEX A hereto) or impose additional conditions to the Offer, (iv) except as of any provided below, change the expiration date of the Offer, or (v) otherwise amend, add or waive any term or condition of the Purchaser Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company's prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company's request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, however, that in no event shall the extensions permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in ANNEX A, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as reasonably practicable after the expiration of the Offer (subject Offer. Parent shall provide, or cause to the applicable provisions of Rule 14d-11 under the Exchange Actbe provided, to Merger Sub, on a timely basis, the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree any shares of Company Common Stock that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation Merger Sub becomes obligated to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 10.1 and (ii) none of the events set forth in Annex I hereto shall have occurred or be existing and not have been waived, Merger Subsidiary shall, not later than five business days from the first public announcement of the execution of this Agreement, commence the Offer. Each Share (including the associated Right) accepted by Merger Subsidiary in accordance with the Offer shall be continuingpurchased for $1.80, net to the Purchaser shallseller in cash, without interest. The Offer shall be subject to the conditions (i) that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least two-thirds of the total number of outstanding Shares, assuming the exercise of all outstanding warrants, options, rights and convertible securities (if any) (other than the Rights, Parent's option to acquire Company Common Stock pursuant to the Stock Option Agreement, to the extent not then exercised and options cancelled pursuant to Section 3.4(a) hereof) and the issuance of all Shares that the Company is obligated to issue pursuant thereto (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Stock Condition"), (ii) that Parent shall have simultaneously accepted for payment Notes in each of the Notes Tender Offers, and (iii) that the other conditions set forth in Annex I hereto shall have been satisfied or waived. Parent and Merger Subsidiary expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of the Offer; provided that, without the written consent of the Company, no change may be made which changes the form or amount of consideration to be paid (other than by adding consideration), imposes conditions to the Offer in addition to those set forth in Annex I or changes or waives the Minimum Stock Condition or amends any other term of the Offer in a manner materially adverse to the holders of Shares. If on the initial scheduled expiration date of the Offer, which shall be no earlier than 20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, Merger Subsidiary may, from time to time, in its sole discretion, extend the expiration date; provided that without the prior written consent of the Company, Merger Subsidiary may not extend the Offer beyond December 28, 2001 (except that Parent may extend the expiration date of the Offer after December 28, 2001 as required to comply with any rule, regulation or interpretation of the SEC). Subject to the terms and conditions of the Offer, Parent shall cause Merger Subsidiary to accept for payment and pay for, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution expiration of the Offer, all Shares validly tendered and delivery not withdrawn pursuant to the Offer. In addition, Merger Subsidiary may extend the Offer after the acceptance of this Agreement), commence (within the meaning Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-2 14d-11 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) , of not more than 20 business days to meet the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant objective (which is not a condition to the Offer on or prior to the expiration of the Offer and not withdrawn shall Offer) that there be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shalltendered, in accordance with the terms of the Offer, consummate prior to the expiration date of the Offer (as so extended) and accept for payment not withdrawn a number of Shares, which together with Shares then owned by Parent and pay forMerger Subsidiary, represents at least 90% of the Fully Diluted Shares.
(b) As soon as practicable after the date of this Agreement, and not later than five business days from the first public announcement of the execution of this Agreement, Parent shall, and Parent shall cause the Purchaser to accept for payment and pay forMerger Subsidiary to, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance file with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“the "SEC”") a Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto and any other filings pursuant to which the staff thereof applicable Offer will be made, the "Offer Documents"). Parent, Merger Subsidiary and the Company each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise Documents as so corrected to be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together filed with the Common Stock then owned by Parent SEC and the Purchaser, represents less than ninety percent (90%) to be disseminated to holders of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, thenShares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with the SEC. In addition, Parent and Merger Subsidiary agree to provide the Company and its counsel with any comments, whether written or oral, that Parent or Merger Subsidiary 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 increase, in each case in its sole discretion and without the consent of the Companycomments or other communications.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but and in any event no later than seven business days within ten (10) Business Days after the execution and delivery date of this Agreement), commence as such period may be extended if and to the extent the Company fails to satisfy its obligations pursuant to Section 1.1(g) or other information required from Representatives of the Company is delayed, the Purchaser shall (and Parent shall cause the Purchaser to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) , the Offer to purchase for cash any and all of the shares of Common Stock outstanding Shares for cash at the Offer Price; provided, however, that if any Governmental Authority shall have issued an Order or taken any other action temporarily restraining, enjoining or otherwise prohibiting the commencement of the Offer and provided further that Parent and the Purchaser shall have, prior to such issuance, used their commercially reasonable efforts to oppose any such action by such Governmental Authority, then such period to commence the Offer may be extended by up to an additional ten (10) Business Days, during which Parent and the Purchaser shall use reasonable best efforts to successfully overturn such action by such Governmental Authority. For the avoidance of doubt, nothing in this Section 1.1 shall require the Purchaser to commence the Offer at any time in violation of any Order or other action by any Governmental Authority temporarily restraining, enjoining or otherwise prohibiting the commencement of the Offer. Notwithstanding anything to the contrary in this Agreement, if the Purchaser shall not have commenced the Offer by May 5, 2016 (the “Offer Deadline”) for any reason other than a failure by the Company to satisfy its obligations under Section 1.1(g) or the receipt of other information from Representatives of the Company having been delayed, the Company may in its sole discretion terminate the Agreement in accordance with Section 7.1(k) hereof. The obligations consummation of the Offer, and the obligation of the Purchaser to accept for payment and to pay for any shares of Common Stock validly Shares tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn Offer, shall be subject to to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the final expiration of the Offer Expiration Date that number of shares of Common Stock Shares which, together with the shares number of Common Stock Shares (if any) then beneficially owned by the Parent or the Purchaser, Purchaser represents at least eighty percent a majority of the Shares then outstanding (80%determined on a fully diluted basis) and no less than a majority of the voting power of the shares of Common Stock capital stock of the Company then outstanding (determined on a Fully-Diluted Basis fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the extent such procedures are permitted by the Purchaser) that have not yet been received by the depositary for the Offer pursuant to such procedures) (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser (to the extent permitted in Annex I), of the other conditions and requirements set forth in Annex I. Subject to this Section 1.1 and Annex I, the conditions and requirements to the Offer set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, are for the number sole benefit of the shares of Common Stock issued Purchaser and outstanding, together with the shares of Common Stock that may be issued asserted by the Company pursuant Purchaser regardless of the circumstances giving rise to warrantssuch condition or may be waived by the Purchaser, optionsin its sole discretion, rights, in whole or obligations outstanding in part at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable any time and from time to time.
(excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). b) Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex I), of the other conditions and requirements set forth in Annex I hereto as of any expiration date of the OfferI, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to to, accept for payment and pay for, for all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after (within the expiration meaning of the Offer (subject to the applicable provisions of Rule 14d-11 Section 14e-1(c) promulgated under the Exchange Act, ) after the Expiration Date. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid without interest, net to the holder thereof in cash, and subject to any withholding of Taxes required by applicable Law. To the extent applicable). any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing that describes the terms set forth and conditions of the Offer in accordance with this Agreement and having only Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I hereto. Parent and I. The Purchaser agree that expressly reserves the right to increase the Offer Price or to Purchase will provide a statement make any other changes in all appropriate places therein 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 and Parent 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 to be purchased in the effect that Offer, (iv) amend or waive the Purchaser’s obligation Minimum Condition or the conditions set forth in clause (b) of Annex I, (v) add to purchase shares or amend any of Common Stock pursuant the conditions and requirements to the Offer set forth in clause (c) of Annex I in a manner that is not conditioned adverse to the holders of Shares in any material respect, (vi) except as provided in Section 1.1(e), extend the Offer or (vii) otherwise modify, supplement or amend the Offer in any manner that is adverse to the holders of Shares in any material respect. 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 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 financing arrangements or subject action with respect to any financing condition. its securities that is prohibited by the terms of this Agreement.
(d) Unless extended in accordance with the terms of this Section 1.1(a)Agreement, the Offer shall provide for an initial expiration initially expire at midnight (New York City time) on the date of twenty that is 20 Business Days (20calculated in accordance with Rule 14d-1(g)(3) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (such date and time, the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw ) or, if the Offer unlesshas been extended as required by or otherwise in accordance with this Agreement, at the Offer shall expire on the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date but subject to the parties’ respective termination rights under ARTICLE VII, (i) any condition to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) has not been satisfied, or, where permitted by applicable Law and this Agreement, waived by the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to), extend the Offer on one or more occasions, for successive periods of up to twenty (20) Business Days each, the length of each such period (subject to such twenty (20) Business Day maximum) to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions or (ii) the Diamond Closing shall not have been satisfied or occurred, the other Purchaser may extend the Offer on one occasion for a period of up to ten (10) Business Days (“Diamond Extension”), by written notice (the “Diamond Extension Notice”) delivered to the Company no later than five (5) Business Days prior to the then scheduled Expiration Date; provided that in no event shall the Expiration Date be extended pursuant to the Diamond Extension Notice to a date later than June 3, 2016. Following the delivery by the Purchaser of a Diamond Extension Notice, the Company may deliver to Parent and the Purchaser a certificate of the Company (an “Extension Officers’ Certificate”), executed by the Chief Executive Officer and the Chief Financial Officer of the Company, to the effect that the conditions to the Offer described set forth in paragraphs (c)(ii) and (c)(iv) of Annex I have not been satisfied as of the date thereof. Following the delivery by the Company of an Extension Officers’ Certificate to Parent and the Purchaser, (A) the conditions to the Offer set forth in paragraph (c)(ii) of Annex I shall be deemed to have been satisfied as of the Expiration Date, other than with respect to any failure of such condition to the Offer which shall result from any Intentional Breach by the Company of any representation or earlier waivedwarranty of the Company contained in this Agreement during the Diamond Extension, and (B) the condition to the Offer set forth in paragraph (c)(iv) of Annex I shall be deemed to have been satisfied as of the Expiration Date. The In addition, the Purchaser expressly reserves shall (and Parent shall cause the Purchaser to) extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the United States Securities and Exchange Commission (the “SEC”) or its staff or NASDAQ applicable to the Offer. Notwithstanding any extension of the Offer pursuant hereto, the Expiration Date shall not be extended to a date that is not a Business Day. Notwithstanding anything to the contrary in this Agreement, the Purchaser shall not extend the Offer for any reason beyond July 15, 2016 (the “Outside Date”). Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to waive or modify terminate this Agreement pursuant to ARTICLE VII hereof.
(f) Neither Parent nor the terms of Purchaser shall terminate the Offer, except that, Offer prior to any scheduled Expiration Date without the prior written consent of the Company (such consent Company, except if this Agreement is terminated pursuant to be authorized by the board of directors of the Company or a duly authorized committee thereof)ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, and Parent shall cause the Purchaser may (but shall to) not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, accept any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly Shares tendered (and not withdrawn) pursuant to the Offer, together with and promptly (and in any event within 48 hours of such termination), irrevocably and unconditionally terminate the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend Offer. If the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful is terminated or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived withdrawn by the Purchaser, then, or this Agreement is terminated prior to the purchase of Shares in each such casethe Offer, the Purchaser shall extend (and Parent shall cause the Offer for up Purchaser to) promptly return, and shall cause any depositary acting on behalf of the Purchaser to ten return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(10g) Business Days. In As soon as practicable on the event date of the Minimum Condition is satisfied commencement of the Offer, Parent and the Purchaser purchases shall file with the shares of Common Stock pursuant SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments, supplements and exhibits thereto, the “Offer Documents”). The Purchaser may, in its sole discretion, provide a “subsequent offering period” guaranteed delivery procedures for the tender of Shares in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”)Offer. In addition, Parent and the Purchaser may increase agree to cause the Offer Price (but not change any other condition Documents to the Offer) be disseminated to holders of Shares, as and extend the Offer to the extent required by law applicable Law. The Company shall promptly furnish to Parent and the Purchaser in connection writing all information concerning the Company that may be required by applicable securities Laws or reasonably requested by Parent or the Purchaser for inclusion in the Offer Documents. Parent and the Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law, and Parent and the Purchaser agree to cause the Offer Documents, as so corrected, to be filed with such increasethe SEC and disseminated to holders of Shares, in each case in as and to the extent required by the Securities Act or the Exchange Act. The Company and its sole discretion counsel shall be given a reasonable opportunity to review the Offer Documents before they are filed with the SEC, and without Parent and the consent Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the CompanyPurchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
Sources: Merger Agreement (Alliance Fiber Optic Products Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuingArticle VIII, the Purchaser shallbelow, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery date of this Agreement), and in any event, within fifteen (15) Business Days, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all Offer.
(b) The obligation of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to to: (i) there being validly tendered and not withdrawn prior to the final expiration satisfaction of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) ; and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, Exhibit A to this Agreement (together with the shares of Common Stock that may be issued by Minimum Condition, the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the “Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option AgreementConditions”). Subject to the terms satisfaction, or waiver by Parent or Merger Sub, of the Offer Conditions, Merger Sub shall (and this Agreement, and Parent shall cause Merger Sub to) consummate the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, Offer in accordance with the its terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the expiration Expiration Time. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (shall be paid net to the seller in cash, without interest, on the terms and subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). conditions set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing that describes the terms and conditions of the Offer as set forth in this Agreement and having only Agreement, including the Minimum Condition and the other conditions set forth in Annex I heretoOffer Conditions. Parent and Purchaser agree that Merger Sub expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition, to increase the Offer Price or to Purchase will provide a statement make any other changes in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms and conditions of the Offer; provided, except thathowever, without the prior written consent of the Company (such consent to be authorized that unless otherwise provided by this Agreement or as approved in writing by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall not (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum ConditionOffer, (ii) decrease reduce the Offer Price, (iii) change, modify or waive the Minimum Condition, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in a manner adverse in any material respect to any holders of Company Common Stock of the Company, (v) except as otherwise provided in this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer or (vii) amend otherwise amend, modify or supplement any other term of the terms of the Offer in a manner adverse in any material respect to any holders of Company Common Stock of the Company.
(d) The Offer shall expire at midnight (eastern standard time) on the date that is materially adverse to twenty (20) Business Days following the holders commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the shares of Common Stock. Notwithstanding Offer (the foregoing“Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the Purchaser date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Merger Sub may extend the Offer Expiration Time at any time with the Company’s written consent. Merger Sub (but shall not be obligated to)i) may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company’s consent, extend the Offer for on one or more periods not to exceed an aggregate occasions for a period of ten (10) Business Days ifDays, as of if on any expiration date, all then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, in Merger Sub’s reasonable discretion, waived, until such time as such condition or conditions set forth in clause are satisfied or waived and (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) shall extend the Offer for any period required by applicable Law, any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (the “SEC”) or ), the staff thereof or the NASDAQ Stock Market (“NASDAQ”) applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaserthat, without the Company’s decision to written consent, Merger Sub shall not extend the Offer in beyond the case earlier of the October 31, 2016 (the “Outside Date”) and the termination of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach Agreement. If, as of any material obligation Offer Expiration Time, any Offer Condition is not satisfied and has not been waived by Merger Sub in its sole discretion, then on not more than two (2) occasions at the request of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser Merger Sub shall extend the Offer for up to an additional period of ten (10) Business Days. In Days (or such longer or shorter period as the event parties hereto may agree) to permit such Offer Condition(s) to be satisfied; provided, however, that, without the Minimum Condition is satisfied Company’s written consent, Merger Sub shall not extend the Offer, and without Merger Sub’s prior written consent, Merger Sub shall not be required to extend the Offer, in each case beyond the earlier of the Outside Date and the Purchaser purchases termination of this Agreement
(f) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 3.05) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated pursuant to Article VIII, prior to the acceptance for payment of the Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the Purchaser mayregistered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer but not later than fifteen (15) Business Days thereafter, in its sole discretionParent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, provide supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto, the “subsequent offering period” in accordance with Rule 14d-11 promulgated under Offer Documents”). The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase to be set forth in the Offer Price (but not change any other condition Documents. Parent and Merger Sub shall be entitled to include the Company Board Recommendation in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the Offer) stockholders of the Company, in each case as and extend the Offer to the extent required by law the Exchange Act. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in connection the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents, as so corrected (if applicable), to be filed with such increasethe SEC and disseminated to the stockholders of the Company, in each case in its sole discretion as and without to the consent extent required by the Exchange Act. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any such comments.
(i) Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(j) For purposes of this Agreement and the Offer, unless agreed by Parent and Merger Sub, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares underlying such notices of guaranteed delivery are delivered to Merger Sub.
Appears in 1 contract
Sources: Merger Agreement (Luminex Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of Article VII, the events conditions set forth in Annex I A (other than clauses (a), (b) or (f) of Annex A) shall have occurred and be continuingbeen satisfied, or if permissible under applicable Law, waived (the conditions set forth in Annex A, the Purchaser “Tender Offer Conditions”), and the Company shall have complied with its obligations under Section 1.2 hereof, Merger Sub shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement)Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and the amended (together with its rules and regulations promulgated thereunder (regulations, the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanOffer, as of any date, promptly as reasonably practicable after the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only in any event within fifteen (15) Business Days after the Minimum Condition and the other conditions set forth in Annex I heretodate of this Agreement. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves reserve the right to waive any of the Tender Offer Conditions, to increase the Offer Price or modify to make any other changes in the terms and conditions of the Offer, except ; provided that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser and Merger Sub shall not:
(i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) Price or change the form of consideration payable in the Offer, ;
(ivii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, ;
(viii) impose additional conditions on the Offer in addition to the Offer, (vi) Tender Offer Conditions or amend any of the conditions set forth condition in Annex I in any a manner adverse to the holders of the shares of Common Stock, ;
(iv) waive or amend the Minimum Condition;
(viiv) amend any other term of the Offer in a manner that is materially adverse to the holders Company Shareholders; or
(vi) extend the Expiration Date except as required or permitted by this Section 1.1. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) Merger Sub shall file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, letter of transmittal and summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”) and cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the shares Exchange Act. The Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the Company Shareholders to the extent required by applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of Common Stockthose comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC or its staff.
(c) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.1(c) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.1(c), the “Expiration Date”). Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (xi) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at on the Initial Expiration Date, any conditions of the Tender Offer Conditions are not satisfied or waived, then, to the Offer shall not have been satisfied or waived extent requested in writing by the Company no less than two (in which event 2) Business Days prior to the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser Merger Sub shall, upon the written request of the Companyand Parent shall cause Merger Sub to, extend the Offer from time to time for one (1) or more periods not of time up to exceed an aggregate of ten (10) Business Days ifper extension until such condition(s) has been satisfied or waived; provided, that Merger Sub shall not be required to extend the Offer beyond April 30, 2010 (the “Outside Date”); provided, further, that if the only Tender Offer Condition which has not been satisfied as of any expiration datethe Outside Date is the Regulatory Condition, all of the conditions set forth in clause Outside Date shall be May 30, 2010, and (ii) of Annex I (other than subparagraph (c) thereof) are not satisfiedMerger Sub shall, but such conditions are reasonably capable of being satisfied in such periodand Parent shall cause Merger Sub to, (y) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the its staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents. Merger Sub shall not more than twenty Business Days) beyond extend the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, Offer if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Tender Offer Conditions are satisfied or earlier waivedwaived and it is permitted under applicable Law to accept for payment and pay for tendered shares.
(d) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause it to, as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock that have been validly tendered and not validly withdrawn pursuant to the Offer. If all of the Tender Offer Conditions are satisfied but the number of shares of Company Common Stock that have been validly tendered (and not withdrawn) pursuant to validly withdrawn in the OfferOffer and accepted for payment, together with the any shares of Company Common Stock then owned by Parent and the Purchaseror any of its Subsidiaries, represents is less than ninety percent (90%) % of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Company Common Stock then outstanding on a fully-diluted basis (on a “fully-diluted basis” meaning the number of shares of Company Common Stock then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to the Offeroptions (whether or not then vested or exercisable), the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act warrants (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer only to the extent required by law in connection with such increasethen exercisable or exercisable as a result of the Transactions), in each case in its sole discretion and rights, convertible or exchangeable securities (only to the extent then convertible or exchangeable into shares of Company Common Stock) or similar obligations then outstanding), Merger Sub may, without the consent of the Company, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to twenty (20) Business Days to acquire outstanding untendered shares of Company Common Stock. If Merger Sub commences a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all additional shares of Company Common Stock validly tendered during such subsequent offering period.
Appears in 1 contract
Sources: Merger Agreement (Chattem Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the provisions of this Agreement Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and none the Company shall issue a public announcement of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in any no event no later than seven business days five Business Days after the execution and delivery date of this Agreement)such announcement, commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder Act) a tender offer (the “Exchange ActOffer”)) the Offer to purchase for cash all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the Offer Priceseller in cash without interest (the “Price Per Share”), subject to reduction only for any applicable withholding taxes. The obligations Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the Purchaser terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the “Minimum Shares”) being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the satisfaction of the other conditions set forth in Annex I A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. “Fully-Diluted Basis” The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall mean(i) decrease the Price Per Share payable in the Offer, as of any date, (ii) decrease the number of the shares of Company Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable sought pursuant to the Offer below a majority of the Fully Diluted Shares of Company Common Stock Option Agreement). Subject or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the terms of Offer (including the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto A hereto) or impose additional conditions to the Offer, (iv) except as of any provided below, change the expiration date of the Offer, or (v) otherwise amend, add or waive any term or condition of the Purchaser Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company’s prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company’s request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, however, that in no event shall the extensions permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in Annex A, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as reasonably practicable after the expiration of the Offer (subject Offer. Parent shall provide, or cause to the applicable provisions of Rule 14d-11 under the Exchange Actbe provided, to Merger Sub, on a timely basis, the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree any shares of Company Common Stock that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation Merger Sub becomes obligated to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallpursuant to Article VIII, as promptly as reasonably practicable following after the execution of this Agreement date hereof (but in any no event no later more than seven business days ten (10) Business Days after the execution and delivery of this Agreementdate hereof), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash any and all of the shares of Common Stock outstanding Company Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to a price per Company Share (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any such date, the number of the shares of Common Stock issued and outstanding“Offer Commencement Date”), together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject subject to the terms of the Offer and this AgreementSection 2.11, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant equal to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)Price. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and having in Annex A. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any Company Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to the satisfaction or waiver of:
(i) the condition (the “Minimum Condition Condition”) that, prior to the Expiration Time, there shall have been validly tendered and not validly withdrawn, in each case, in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent, Merger Sub and their respective controlled Affiliates (if any), represent one more than 50% of the sum of (x) all then outstanding Company Shares (not including Company Shares tendered pursuant to guaranteed delivery procedures for which the underlying Company Shares have not yet been delivered) plus (y) the aggregate number of Company Shares issuable to holders of Company Options from which the Company has received valid notices of exercise (including payment of any applicable exercise price in accordance with the terms of the Company Stock Plans and applicable award agreement) prior to the expiration of the Offer (and as to which Company Shares have not yet been issued to such exercising holders of Company Options), plus (z) the aggregate number of Company Shares issuable to holders of Company Convertible Notes from which the Company has received valid notices of conversion to Company Shares in accordance with the Company Convertible Notes prior to the expiration of the Offer (and as to which Company Shares have not yet been issued to such exercising holders of Company Convertible Notes); and
(ii) each of the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.A.
Appears in 1 contract
Sources: Merger Agreement
The Offer. (a) Provided that Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall7.1, as promptly as reasonably practicable after the date hereof, but in no event later than ten (10) Business Days following the public announcement of the execution of this Agreement (but in any event no later than seven business days after accordance with the execution and delivery terms of this Agreement), Parent and Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “"Exchange Act”")) the Offer to purchase for cash exchange all of the outstanding shares of Company Common Stock at for the right to receive from Purchaser, for each Share validly tendered and not withdrawn, the Offer PricePrice payable in an amount of cash (the "Cash Consideration") and a number of validly issued, fully paid and nonassessable shares of Parent Common Stock (the "Stock Consideration") in each case determined in accordance with Annex II hereof (such cash amount and number of shares of Parent Common Stock, the "Offer Consideration"). The obligations obligation of the Purchaser to accept for payment payment, and to pay for any shares of Common Stock validly for, Shares tendered pursuant to the Offer on or prior shall be subject only to the conditions set forth in Annex I hereto (the "Offer Conditions") (any or all of which may be waived in whole or in part by Purchaser in its sole discretion other than the Minimum Condition, as defined below, or any Parent Stock Condition, as defined in Annex I hereto) and to the terms and conditions of this Agreement. The initial scheduled expiration date of the Offer and not withdrawn shall be subject to twenty (i20) Business Days after the Offer is commenced. As used herein, the term "Minimum Condition" shall mean that there being shall have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”including any extension thereof) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration Shares that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety constitute seventy percent (9070%) of the outstanding Voting Common Stock (determined on a fully diluted, as converted basis for all outstanding shares of Class B Common Stock, stock options and any other rights to acquire shares of Voting Common Stock on (collectively, a Fully-"Fully Diluted Basis; provided, however, that Purchaser’s decision to extend ")). No Shares held by the Offer Company or any of its subsidiaries will be tendered in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
Sources: Merger Agreement (Kellwood Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article IX hereof and none of the events set forth in Annex I clause (III)(a) through (i), inclusive, of the Tender Offer Conditions, shall have occurred and be continuing, the Purchaser shalloccurred, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery date of this Agreement), Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer an offer to purchase for cash all of the outstanding shares of (i) Seller Common Stock at the Common Stock Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant , net to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Seller Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) Stockholders in cash and (ii) Seller Series A Convertible Preferred Stock at the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Preferred Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant net to the Stock Option Agreement)Seller Preferred Stockholders in cash, and shall use its reasonable commercial efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. Subject to the terms and conditions of this Agreement and to the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the OfferTender Offer Conditions, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause Purchaser to, promptly after the Purchaser to expiration of the Offer, accept for payment and pay for, all such shares of Seller Common Stock and Seller Series A Convertible Preferred Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer and not withdrawn.
(subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”b) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right right, in its sole discretion, to waive waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided, except thathowever, that without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Seller, neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) not decrease the Offer Price, (iii) Price or change the form of consideration payable in the Offer, waive or amend the Minimum Condition (iv) as defined in Annex I hereto), decrease the number of shares of Seller Common Stock or Seller Preferred Stock sought to be purchased in the Offer, (v) impose additional conditions to the Offer, (vi) Offer or amend any other term of the conditions set forth in Annex I Offer in any manner adverse to the holders of the shares of Seller Common Stock or Seller Preferred Stock, or . The Offer shall remain open until the date that is twenty (vii20) amend any other term Business Days after the commencement (determined pursuant to Rule 14d-2 under the Exchange Act) of the Offer (the “Expiration Date”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in a manner that is materially adverse to accordance with, the holders succeeding sentence or as may be required by applicable Laws or interpretations or positions of the shares of Common Stock. Notwithstanding Securities and Exchange Commission or its staff (the foregoing, the Purchaser may (but shall not be obligated to“SEC”), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which as the Offer, as so extended by the Purchaserextended, shall so may expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” period after the Expiration Date, in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”)Act. In additionIf on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Purchaser, Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer from time to time through the Outside Date (as defined in Section 9.1(c) below); provided, however, that, on such Expiration Date (i) if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the extent required by law in connection with such increaseOffer or the Merger shall not have expired or been terminated, in each case in its sole discretion and without Purchaser shall extend the consent 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 CompanyTender Offer Conditions set forth in paragraph III(a) of Annex I hereto shall have occurred and be continuing, 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 paragraph III(a) shall have become final and non-appealable; provided further, however that Purchaser shall in no event be required to extend the Offer beyond the Outside Date. Nothing contained in this paragraph shall affect any termination rights in Article IX.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VII hereof and none of the events set forth in Annex I A hereto (the "Offer Conditions") shall have occurred and or be continuingexisting, within five Business Days of the Purchaser shalldate hereof, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Merger Sub will commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder a tender offer (the “Exchange Act”)"Offer") the Offer to purchase for cash all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock at of U.S. $25.00 net to the Offer Price. Seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto.
(b) The obligations obligation of the Purchaser Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior shall be subject only to the expiration satisfaction or waiver of the Offer Conditions, including the Offer Condition that at least that number of shares of Company Common Stock equivalent to a majority of the total issued and not withdrawn outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable"Minimum Condition"). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase Merger Sub will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except thatnot, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall Board): (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) amount or change the form of consideration payable in the Offer, (iviii) decrease the number of shares of Company Common Stock sought in the Offer, (viv) impose additional conditions to the Offer, (viv) amend change any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer Condition or (vii) amend any other term of the Offer if any such change or amendment would be adverse in a manner that is materially adverse any respect to the holders of the shares Company Common Stock (other than Parent or Merger Sub) or (vi) except as provided below, extend the Offer if all of Common Stockthe Offer Conditions have been satisfied. Notwithstanding Subject to the foregoingterms and conditions hereof, the Purchaser may Offer shall remain open until midnight, New York City time, on the date that is twenty (but shall not be obligated to20) Business Days after the Offer is commenced (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the Company extend the Offer Board, Merger Sub may (x) beyond extend the Initial Expiration Date from time to timeOffer, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, if at the Initial Expiration Date, any conditions to scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one (1) or more periods not to (none of which shall exceed an aggregate of ten (10) Business Days if, Days) until such time as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such periodor waived, (y) extend the Offer for any such period as may be required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“"SEC”") or the staff thereof applicable to the Offer and or (z) on extend the Offer for one (1) or more occasions periods (all each such occasions aggregating period to be for not more than twenty three (3) Business DaysDays and such extensions to be for an aggregate period of not more than ten (10) Business Days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence, if, ) if on such expiration date, all of date the conditions to the Purchaser’s obligation to accept payment of the Common Stock are Offer Conditions shall have been satisfied or earlier waived, waived but the there shall not have been tendered that number of shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less which would equal more than ninety percent (90%) of the issued and outstanding shares of Company Common Stock on a Fully-Diluted Basis; provided, however, Stock. Merger Sub agrees that Purchaser’s decision to extend if all of the Offer in the case of this clause (z) shall constitute a waiver Conditions are not satisfied on any expiration date of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the PurchaserOffer, then, in each such case, the Purchaser Merger Sub shall extend the Offer for up to one or more periods of not more than ten (10) Business DaysDays each if requested to do so by the Company; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date or, if earlier, the date of termination of this Agreement in accordance with the terms hereof. In On the event terms of the Minimum Condition is satisfied Offer and subject to the Purchaser purchases the Offer Conditions and this Agreement, Merger Sub shall pay for all shares of Company Common Stock Stock, validly tendered and not withdrawn pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase Offer that Merger Sub becomes obligated to purchase pursuant to the Offer Price (but not change any other condition to as soon as practicable after the expiration of the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven five business days after the execution and delivery date of this Agreement), Sub shall, and Parent shall cause Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer PriceSEC. The obligations obligation of the Purchaser Sub to, and of Parent to cause Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as Exhibit A (any of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that which may be issued waived by the Company pursuant Sub in its sole discretion) and to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I heretoAgreement. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent unless the Company takes any action permitted to be authorized by the board of directors of the Company or a duly authorized committee thereoftaken pursuant to Section 6.02(b)), neither the Parent nor the Purchaser Sub shall not (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum ConditionOffer, (ii) decrease reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) modify or add to the conditions set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided in the next sentence, extend the Offer or (v) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Sub may, without the consent of the Company Company, (i) extend the Offer, if at the scheduled expiration date of the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods any of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied ifSub's obligation to purchase shares of Company Common Stock are not satisfied, at the Initial Expiration Date, any until such time as such conditions to the Offer shall not have been are satisfied or waived waived, (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, ii) extend the Offer for one or a period of not more periods not to exceed an aggregate of than ten (10) Business Days if, as of any business days beyond the initial expiration date, all date of the conditions set forth in clause (ii) Offer, if on the date of Annex I (other such extension less than subparagraph (c) thereof) are 90% of the outstanding shares of Company Common Stock have been validly tendered and not satisfied, but such conditions are reasonably capable of being satisfied in such periodproperly withdrawn pursuant to the Offer, (yiii) extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the staff thereof applicable to the Offer, (iv) extend the Offer in order to provide sufficient time to respond to any supplement or amendment to the Company Disclosure Letter delivered to Parent pursuant to Section 6.01(c)(ii) and (zv) on one or more occasions (all such occasions aggregating extend the Offer for any reason for a period of not more than twenty Business Days) ten business days beyond the latest expiration date that would otherwise be permitted under clause (xi), (ii), (iii) or (yiv) of this sentence, if, on such expiration date, all . On the terms and subject to the conditions of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waivedOffer and this Agreement, but the number of Sub shall pay for all shares of Company Common Stock validly tendered (and not withdrawn) withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. Sub may, at any time, transfer or assign to one or more corporations directly or indirectly majority owned by Parent the right to purchase all or any portion of the shares of Company Common Stock tendered pursuant to the Offer, together with but any such transfer or assignment shall not relieve Sub of its obligations under the Offer or prejudice the rights of tendering stockholders to receive payment for shares of Company Common Stock then owned by properly tendered and accepted for payment. Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, Sub agree that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses paragraphs (da) and through (fh) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, Exhibit A shall be subject to the provisions reasonable judgment of Section 8.1(b)(iiiParent or Sub.
(b) On the date of this Agreement, if, on the Initial Expiration Date any commencement of the events set forth in subparagraph (c) of Annex I Offer, Parent and Sub shall have occurred and be continuing and shall not have been waived by file with the Purchaser, then, in each such case, the Purchaser shall extend the SEC a Tender Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the Purchaser maydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Company's stockholders, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) each case as and extend the Offer to the extent required by law applicable Federal securities laws. Parent and Sub shall provide the Company and its counsel in connection writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such increase, in each case in its sole discretion and without the consent of the Companycomments.
Appears in 1 contract
Sources: Merger Agreement (Ford Motor Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 6.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, then as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven business days after fifteen (15) Business Days following the execution date hereof), Merger Sub shall, and delivery of this Agreement)Parent shall cause Merger Sub 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 for cash all of the shares of Company Common Stock at the Offer Price; provided, however, that Merger Sub shall not commence the Offer prior to the tenth Business Day following the date hereof without the prior written consent of the Company. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for any for, shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the final expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Company Common Stock which, together with the shares of Company Common Stock then beneficially owned by the Parent or Merger Sub (including, without limitation, the Purchasershares of Company Common Stock to be sold to Merger Sub pursuant to the Stock Purchase Agreement), represents at least eighty percent (80%) 66-2/3% of the outstanding shares of Company Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”") and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser Merger Sub of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser Merger Sub shall, in accordance with the terms of the Offer, promptly after the expiration of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser Merger Sub to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Each of Parent and Purchaser agree Merger Sub agrees that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s Merger Sub's obligation to purchase shares of Company Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) Days following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “"Initial Expiration Date”"). The Purchaser Parent and Merger Sub shall have the Parent agree that they shall not terminate or withdraw right to extend the Offer unlessfor one ten Business Day period for any reason in their sole discretion. The latest time and date at which the Offer, at as may be extended beyond the Initial Expiration DateDate as permitted or required by this Section 1.1(a), the Minimum Condition shall expire shall not have been satisfied be later than the Outside Date (except as may otherwise be required by rule, regulation, interpretation, or position of the other conditions SEC or its staff) and is herein referred to as the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser "Expiration Date." Merger Sub expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser Merger Sub shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Company Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, the Purchaser may or (but shall not be obligated to), without the consent of the Company viii) extend the Offer (x) beyond except as expressly permitted or required by this Section 1.1(a). Each of Parent and Merger Sub agree that they shall not terminate or withdraw the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied ifOffer unless, at the Initial Expiration Date, any conditions to the Offer Minimum Condition shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the other conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating described in Annex I shall not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are have been satisfied or earlier waived, but . Notwithstanding the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.foregoing:
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VII, then (i) not later than the first Business Day (as defined below) after execution of this Agreement and none of the events set forth in Annex I shall have occurred and be continuingAgreement, the Purchaser shall, as promptly as reasonably practicable following Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in any no event no later than seven business days ten Business Days after the execution and delivery date of this Agreement)such announcement, commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, (as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”defined below)) the Offer to purchase for cash all of the outstanding shares of the Company Common Stock at the Offer Priceprice of $10 per share, net to the seller of such shares in cash (such price, or such higher price per share of the Company Common Stock as may be paid in the Offer, the "PRICE PER SHARE"). The obligations obligation of the Purchaser Merger Sub to accept for payment payment, purchase and to pay for any shares of the Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (iA) there at least that number of shares of the Company Common Stock equivalent to a majority of the total issued and outstanding shares of the Company Common Stock on a fully diluted basis (assuming the exercise of all outstanding Options (as defined in Section 3.1(b)(i) (other than Options held by the Management Group (as defined below)) and any other rights to acquire shares of the Company Common Stock) on the date such shares are purchased pursuant to the Offer being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) "MINIMUM CONDITION"), and (iiB) the satisfaction of the other conditions set forth in Annex I ANNEX A hereto, which is incorporated herein by reference, any of which conditions may be waived by the Parent in its sole discretion; PROVIDED, HOWEVER, that the Parent shall not waive the Minimum Condition or the Antitrust Condition (as defined below) without the prior written consent of the Company. “Fully-Diluted Basis” shall meanThe Company agrees that no shares of the Company Common Stock held by the Company or any of its Subsidiaries (as defined below) will be tendered to Merger Sub pursuant to the Offer.
(b) The Parent and Merger Sub expressly reserve the right, as in their sole discretion, to make any changes in the terms and conditions of any datethe Offer, provided that without the prior written consent of the Company, neither the Parent nor Merger Sub will (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of the shares of the Company Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable sought pursuant to the Stock Option Agreement). Subject to Offer or change the form of consideration payable in the Offer, (iii) add, waive, change or amend the terms of or conditions to the Offer and this Agreement, and (including the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto ANNEX A hereto) in any manner adverse to the holders of shares of the Company Common Stock or (iv) change the expiration date of the Offer; PROVIDED, HOWEVER, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the Outside Date (as of defined below)); provided, further, that if on any scheduled expiration date of the Offer, the Purchaser Offer shall not have been consummated (A) due to the failure to satisfy the Minimum Condition or any of the conditions set forth in paragraphs (a), (b), (d)(i) (so long as with respect to paragraph (d)(i), the relevant representation or warranty is reasonably capable of being cured within ten calendar days by the exercise of reasonable best efforts and an executive officer of the Company certifies in writing that such representation or warranty is reasonably capable of being cured by the Company within ten calendar days through the exercise of such reasonable best efforts) and (e) of Annex A (except with respect to paragraph (d)(i), other than as a result of a breach by the Company), at the request of the Company, Merger Sub shall from time to time extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each for up to an aggregate of 20 Business Days (but in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); or (B) due to the failure to satisfy the condition to the Offer relating to the expiration or termination of the waiting period under the HSR Act (as defined below) or the compliance with any applicable foreign legal requirements relating to competition (collectively, the "Antitrust Condition") or the Financing Condition (as defined in Annex A), then, at the request of the Company, Merger Sub shall extend any such expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and PROVIDED, FURTHER, that Merger Sub may, (1) without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC (as defined below) applicable to the Offer in the event of an increase in the Price Per Share or as otherwise required by law and (2) extend the Offer in accordance with Rule 14d-11 under the Exchange Act if (x) the conditions to the Offer shall have been satisfied or waived and shall not apply to any extension, (y) the number of shares of the Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the issued and outstanding shares of the Company Common Stock and (z) Merger Sub shall accept and promptly pay for all shares of Company Common Stock validly tendered and not withdrawn; PROVIDED, HOWEVER, that in no event shall the extensions permitted under the foregoing clause (2) exceed, in the aggregate, ten Business Days. The Parent, Holdings and Merger Sub will, subject to the terms and conditions of this Agreement, use their reasonable best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in Annex A, and subject to the terms and conditions of this Agreement, (i) Merger Sub shall, and the Parent shall cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of the Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after as soon as practicable, recognizing that the expiration parties wish to close as expeditiously as possible following satisfaction of the Offer Antitrust Condition, and (subject ii) the Parent shall provide, or cause to the applicable provisions of Rule 14d-11 under the Exchange Actbe provided, to Merger Sub, on a timely basis, the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (any shares of the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree Company Common Stock that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation Merger Sub becomes obligated to purchase shares of Common Stock pursuant to the Offer is not conditioned on Offer. Merger Sub may, at any financing arrangements time, transfer or subject assign to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and one or more corporations directly or indirectly wholly-owned by the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive purchase all or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders portion of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with provided that any such transfer or assignment shall not prejudice the rights of tendering stockholders to receive payment for shares of Company Common Stock then owned by Parent properly tendered and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer accepted for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companypayment.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article IX, and provided further that none of the events set forth in Annex I hereto shall have occurred and be continuing, unless otherwise agreed by Parent and the Purchaser shallCompany, as promptly soon as reasonably practicable following after the public announcement of the execution of this Agreement (Agreement, but in any event no later than seven within ten business days after the execution and delivery of this Agreement)date hereof, Parent shall cause Merger Sub 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 for cash all Offer. The consummation of the shares of Common Stock at Offer shall be subject only to (x) the Offer Price. The obligations condition that there shall be validly tendered in accordance with the terms of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or Offer, prior to the expiration of the Offer Offer, and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that withdrawn, at least a number of shares of Company Common Stock whichthat, together with the shares of the Company Common Stock then beneficially owned by the Parent or the PurchaserParent, represents at least eighty percent (80%) a majority of the shares of Company Common Stock outstanding on a Fullyfully-Diluted Basis diluted basis (the “"Minimum Condition”") and (iiy) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of Merger Sub expressly reserves the right to waive any date, the number of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that Merger Sub may not, without the prior written consent of the Company, (i) waive the satisfaction of the Minimum Condition or (ii) accept for payment any shares of Company Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable tendered pursuant to the Offer if the Minimum Condition has not been met, and provided further that no change may be made without the prior written consent of the Company that changes the form of consideration payable in the Offer, decreases the consideration payable in the Offer, reduces the maximum number of shares of Company Common Stock Option Agreement)to be purchased in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I or makes any other change which is adverse to the holders of Company Common Stock. Subject to the terms and conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the date that is 20 business days after the date the Offer is commenced (the "Initial Expiration Date"). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (i) if, at any scheduled expiration of the Offer and this Agreementany of the conditions to Merger Sub's obligation to accept shares for payment shall not be satisfied or waived, and extend the prior satisfaction Offer beyond the Initial Expiration Date for a time period reasonably necessary to permit such condition(s) to be satisfied, (ii) extend the Offer for any period required by any rule, regulation or waiver by interpretation of the Parent SEC, or the Purchaser staff thereof, applicable to the Offer or (iii) extend (or re-extend) the Offer for an aggregate period of three to 20 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 Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and to Merger Sub's obligations to accept shares for payment and pay forare satisfied or waived, and Parent shall cause but the Purchaser to accept for payment and pay for, all number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration equals less than 90% of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase outstanding shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Merger Sub may, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”)Act. In addition, the Purchaser Per Share Amount may increase be increased and the Offer Price (but not change any other condition to the Offer) and extend the Offer may be extended to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
(b) On the date of commencement of the Offer, Parent shall, and Parent shall cause Merger Sub to, file with the SEC a Tender Offer Statement on Schedule TO ("Schedule TO", and such Schedule TO and any documents included therein pursuant to which the Offer will be made, together with any amendments or supplements thereto, the "Offer Documents"). The Offer Documents shall comply in all material respects with the requirements of applicable United States federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that in complying with the foregoing commitments, Parent or Merger Sub may rely on the accuracy of any information supplied by the Company or any of its stockholders for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect and to supplement the Offer Documents to include any information that shall become necessary to include in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent shall, and Parent shall cause Merger Sub to, take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and, at such time as reasonably agreed by Parent and the Company, disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities Laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents prior to their being filed with the SEC or disseminated to the holders of shares of Company Common Stock. Parent shall, and Parent shall cause Merger Sub to, provide the Company and its counsel with any comments Parent and Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate in the response of Parent or Merger Sub to such comments.
(c) Merger Sub shall not terminate, nor shall Parent permit Merger Sub to terminate, the Offer between scheduled expiration dates (except in the event that this Agreement is terminated pursuant to Section 9.01) and that, in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due to the failure of one or more of the conditions set forth in Annex I, unless this Agreement shall have been terminated pursuant to Section 9.01, Merger Sub, and Parent shall cause Merger Sub to, extend the Offer until such date as the conditions set forth in Annex I have been satisfied or such later date as required by applicable Law; provided that nothing herein shall require Merger Sub to extend the Offer beyond the termination date listed in Section 9.01(b).
(d) Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Parent shall cause Merger Sub to accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Pfizer Inc)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallARTICLE 10 hereof, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven within ten business days after the execution and delivery of this Agreement)date hereof, commence (Merger Sub shall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedamended (the "EXCHANGE ACT"), and the rules and regulations promulgated thereunder thereunder, an offer to purchase (the “Exchange Act”"OFFER") all, and in any event not less than a majority on a fully diluted basis (assuming the exercise of all Options (as defined in Section 5.2(d)) that are then exercisable and any other rights to acquire shares of Common Stock on the Offer to date of purchase for cash all (a "FULLY DILUTED BASIS"), of the outstanding shares of Common Stock at a price of $3.00 per share of Common Stock, net to the seller in cash, without interest (such price or any higher price paid pursuant to the Offer, the "OFFER CONSIDERATION"). Notwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer Pricethe outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligations obligation of Purchaser and Merger Sub to commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in EXHIBIT A hereto and to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, the Offer shall expire 20 business days after the date of its commencement, unless this Agreement is terminated in accordance with ARTICLE 10, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Purchaser and Merger Sub expressly reserve the right, in their sole discretion, to modify the terms of the Purchaser to accept for payment Offer and to waive any condition of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in EXHIBIT A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change the form of consideration payable in the Offer, (vi) except as set forth herein, amend or modify any term or condition of the Offer (including the conditions set forth on EXHIBIT A) in any manner adverse to the holders of Common Stock or (vii) impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in effect and the conditions to the Offer set forth in EXHIBIT A have not been satisfied or waived, Merger Sub may, without the consent of the Company, extend the expiration date of the Offer for one or more periods of up to ten additional business days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the sixtieth business day after the date of this Agreement (the "OUTSIDE DATE")). So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived and shall not apply to any extension, Merger Sub may, without the consent of the Company, provide for one or more subsequent offering periods in accordance with Rule 14d-11 under the Exchange Act, if (i) the number of shares of Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of the Common Stock on a Fully Diluted Basis and (ii) Merger Sub shall accept and promptly pay for any all shares of Common Stock validly tendered pursuant and not withdrawn; PROVIDED, HOWEVER, that no such subsequent offering periods shall exceed, in the aggregate, twenty business days. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, extend the Offer (beyond the Outside Date, if necessary) (i) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) for one or more periods of up to ten additional business days due to the other failure to satisfy the condition to the Offer relating to the expiration or termination of the waiting period under the HSR Act (as defined below). It is agreed that the conditions set forth in Annex I heretoEXHIBIT A are for the sole benefit of Merger Sub and Purchaser and may be asserted by Merger Sub or Purchaser, or may be waived in whole or in part by Merger Sub or Purchaser, in their sole discretion. “Fully-Diluted Basis” The failure by Merger Sub or Purchaser at any time to exercise any of the foregoing rights shall mean, as not be deemed a waiver of any date, the number of the shares of Common Stock issued such right and outstanding, together with the shares of Common Stock that each such right shall be deemed an ongoing right which may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding asserted at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement)any time. Subject to the terms and conditions of the Offer and this AgreementAgreement and to the provisions of Rule 14d-11 under the Exchange Act, Merger Sub shall accept for payment and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shallpay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after the expiration of the Offer Offer.
(subject c) Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer is not conditioned and shall be liable on any financing arrangements a direct and primary basis for the performance by Merger Sub or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days Surviving Corporation (as defined in Rule 14d-1 promulgated SECTION 2.1), as the case may be, of its obligations under this Agreement with respect to the Exchange Act, each a “Business Day”) following the commencement payment of the Offer Consideration, the Option Consideration (within as defined in SECTION 5.2(D)) and the meaning of Rule 14d-2 promulgated under the Exchange Act) Merger Consideration (the “Initial Expiration Date”as defined in SECTION 5.2(B)). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unlessMerger Sub may, at the Initial Expiration Dateany time, the Minimum Condition shall not have been satisfied transfer or the other conditions assign to the Offer described in Annex I have not been satisfied one or earlier waived. The more corporations directly or indirectly wholly-owned by Purchaser expressly reserves the right to waive purchase all or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders portion of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with provided that any such transfer or assignment shall not prejudice the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) rights of the outstanding tendering stockholders to receive payment for shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) properly tendered and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer accepted for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companypayment.
Appears in 1 contract
The Offer. (aA) Provided that this Agreement shall not have previously been validly terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall7, as promptly as reasonably practicable following after the execution of this Agreement (date hereof, but in any event no later than seven within ten business days after the execution and delivery date of this Agreement), Purchaser shall 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 for cash all of the shares outstanding Company Shares (including any Company Shares subject to repurchase rights in favor of Common Stock at the Company) for consideration per Company Share consisting of the Offer Price. (The obligations date on which Purchaser commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the "Offer Commencement Date").
(B) As promptly as practicable on the later of: (i) the earliest date as of which Purchaser is permitted under applicable Legal Requirements to accept for payment and to pay for any shares of Common Stock validly Company Shares tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) Offer; and (ii) the other earliest date as of which each of the conditions set forth in Annex I hereto. “Fully-Diluted Basis” (the "Offer Conditions") shall meanhave been satisfied or waived, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable Purchaser shall (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause Purchaser to) accept for payment all Company Shares tendered pursuant to the Offer (and not validly withdrawn). The obligation of Purchaser to accept for payment and pay for, all shares of Common Stock validly Company Shares tendered and not withdrawn pursuant to the Offer promptly after shall be subject only to the expiration satisfaction or waiver of each of the Offer Conditions (and shall not be subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicableany other conditions). The Offer shall be made by means As promptly as practicable after the acceptance for payment of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock any Company Shares tendered pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)Offer, the Offer Purchaser shall provide pay for an initial expiration date of twenty such Company Shares.
(20C) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions Notwithstanding anything to the Offer described contrary contained in Annex I have not been satisfied or earlier waived. The this Agreement, neither Parent nor Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, shall (without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall Company):
(i) amend change or waive satisfaction of the Minimum Condition, Condition (as defined in Annex I);
(ii) decrease the number of Company Shares sought to be purchased by Purchaser in the Offer;
(iii) reduce the Offer Price, ;
(iiiiv) extend or otherwise change the expiration date of the Offer (except to the extent required pursuant to Section 1.1(d));
(v) change the form of consideration payable in the Offer; or amend, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend modify or supplement any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer Conditions or (vii) amend any other term terms of the Offer in a manner that is materially adverse adversely affects, or would reasonably be expected to adversely affect, the holders of Company Shares.
(D) Unless extended as provided in this Agreement, the shares of Common StockOffer shall expire on the date (the "Initial Expiration Date") that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date or any subsequent date as of which the events set forth in subparagraph (c) of Annex I shall have occurred Offer is scheduled to expire, any Offer Condition is not satisfied and be continuing and shall has not have been waived by the waived, then Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company, may extend (and re-extend) the Offer and its expiration date for one or more periods ending no later than the Outside Date, to permit such Offer Condition to be satisfied; provided, however, that no individual extension shall be for a period of more than 10 business days without the prior written consent of the Company. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 7.
(E) Purchaser may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) (and, if immediately following the Acceptance Time (as defined in Section 1.4(a)), Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn), to the extent requested by the Company, Purchaser shall provide for a subsequent offering period of at least 10 business days) in accordance with Rule 14d-11 under the Exchange Act following the Acceptance Time.
(F) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Company Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by Purchaser for the Company Shares.
Appears in 1 contract
Sources: Merger Agreement (Inverness Medical Innovations Inc)
The Offer. (a) Provided that Commencement of the Offer. Unless this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement ARTICLE VIII, and none of subject to the events Company having complied with its obligations set forth in Annex I shall have occurred and be continuing, the Purchaser shallSection 1.02(b), as promptly as reasonably practicable following after the execution date of this Agreement (but in any no event no later more than seven business days ten Business Days after the execution and delivery date of this Agreement), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), such date hereinafter referred to as the “Offer Commencement Date”) the Offer to purchase for cash all Offer.
(b) Terms and Conditions of the shares of Common Stock at the Offer PriceOffer. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to to: (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Tender Condition”) ; and (ii) the satisfaction, or waiver (to the extent permitted by Law) by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, (together with the shares of Common Stock that may be issued by Minimum Tender Condition, the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the “Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option AgreementConditions”). Subject to the terms prior satisfaction of the Offer and this Agreement, Minimum Tender Condition and the prior satisfaction satisfaction, or waiver by the Parent or the Purchaser Merger Sub, of the Minimum Condition other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, Offer in accordance with the its terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the expiration Expiration Time; provided, that with respect to shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be under no obligation to make any payment for such shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (shall be paid net to the seller in cash, without interest, on the terms and subject to the applicable provisions conditions set forth in this Agreement.
(c) Offer to Purchase; Adjustment of Rule 14d-11 under the Exchange Act, to the extent applicable)Offer Price; Waiver of Conditions. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing that describes the terms and conditions of the Offer as set forth in this Agreement and having only Agreement, including the Minimum Tender Condition and the Offer Conditions. Parent and Merger Sub expressly reserve the right, to the extent permitted by Law, to waive, in whole or in part, any Offer Condition (other than the Minimum Tender Condition), to increase the Offer Price, or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not: (i) reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer; (ii) reduce the Offer Price; (iii) amend, modify, or waive the Minimum Tender Condition; (iv) impose conditions or requirements to the Offer in addition to those set forth in Annex I hereto. Parent and Purchaser agree I; (v) amend or modify any Offer Condition in a manner that the Offer adversely affects, or that would reasonably be expected to Purchase will provide a statement in all appropriate places therein to the have an adverse effect that the Purchaser’s obligation to purchase on, any holders of shares of Company Common Stock pursuant Stock, or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement consummation of the Offer (within or prevent, materially delay or materially impair the meaning ability of Rule 14d-2 promulgated under Parent or Merger Sub to consummate the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration DateOffer, the Minimum Condition shall not have been satisfied Merger, or the other conditions to Transactions; (vi) except as otherwise provided in Section 1.01(d), 1.01(e), or 1.01(g), terminate the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves accelerate, extend or otherwise change the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company Expiration Time; (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iiivii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, ; or (viiviii) amend provide any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with within the meaning of Rule 14d-11 promulgated under the Exchange Act Act.
(a d) Expiration of the Offer. The Offer shall expire at one minute after 11:59 p.m., New York time, on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Subsequent Offering PeriodInitial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to and in accordance with to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following after the execution of this Agreement (date hereof, but in any no event no later than seven business days after the execution and delivery of this Agreement)December 30, 2005, Merger Sub shall commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder Act) an offer (the “Exchange Act”)"OFFER") the Offer to purchase for cash any and all of the outstanding shares of common stock, par value $0.01 per share, of the Company ("COMPANY COMMON STOCK"), at a price of $6.20 per share, net to the seller in cash, subject to adjustment as set forth in Section 1.2(h) (the "OFFER PRICE") and subject to reduction for any applicable withholding taxes and, if such payment is to be made other than to the registered holder of any such shares, any applicable stock transfer taxes payable by such holder. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer, and not withdrawn, a number of shares of Company Common Stock that, together with any shares of Company Common Stock then owned by Parent or any of its subsidiaries, represents at the Offer Price. The obligations least a majority of the Purchaser sum of (i) the outstanding shares of Company Common Stock as of the date of the expiration of the Offer, and (ii) the number of shares of Company Common Stock issuable pursuant to Company Options and Company Warrants that are vested and exercisable as of the Termination Date (as defined in Section 8.1(c)) (the "MINIMUM CONDITION"), and Merger Sub shall not be required to accept for payment and to or pay for any shares of Company Common Stock validly tendered pursuant to Stock, and may terminate the Offer Offer, if, on or prior to the expiration date of the Offer and not withdrawn shall be subject to (as extended in accordance with this Section 1.2), (i) there being validly tendered and the Minimum Condition has not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent been met or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanA hereto have not been satisfied.
(b) Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms or conditions of the Offer; provided, as however, that no change or waiver may be made that, without the prior written consent of any datethe Company, amends or waives the Minimum Condition, changes the form of consideration to be paid, decreases the price per share or the number of the shares of Company Common Stock issued and outstandingsought in the Offer, together with imposes conditions to the shares Offer in addition to those set forth in Annex A, amends the conditions to the Offer set forth in Annex A so as to broaden the scope of such conditions, extends the Offer other than as set forth in Section 1.2(c), is otherwise adverse to the holders of Company Common Stock in the good faith determination of the Company, or waives the condition that may be issued by the Company pursuant to warrantsDetermination Time (as defined in Annex A hereto) any applicable waiting period under the HSR Act or any other antitrust or competition laws, options, rights, rules or obligations outstanding at that date which have exercise regulations the parties reasonably agree are applicable has expired or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable been terminated.
(excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). c) Subject to the terms and conditions of the Offer and this Agreement, and the prior satisfaction Offer shall expire at midnight, New York Time, on the date that is twenty (20) business days (calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the date the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided however, that (i) Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or waiver by the Parent or the Purchaser position of the Minimum Condition Securities and Exchange Commission ("SEC") or its staff, or of the other Nasdaq Stock Market, Inc. ("NASDAQ"), that is applicable to the Offer, and (ii) in the event that any of the conditions to the Offer set forth in Annex I hereto A are not satisfied or waived as of any then scheduled expiration date of the Offer, Merger Sub shall extend the Purchaser shallOffer for successive extension periods of not more than ten (10) business days each, until such time as either (A) all of the conditions to the Offer are satisfied or waived, or (B) this Agreement is terminated pursuant to the terms of Article 8; provided however, that if at any time after two (2) such successive extensions of the Offer by Merger Sub in accordance with the terms foregoing clause (ii) of this Section 1.2(c), Parent or Merger Sub reasonably concludes that a condition set forth in Annex A will not be satisfied prior to the Termination Date, then Merger Sub shall not be required to further extend the Offer; provided further, consummate that notwithstanding the foregoing clauses (i) and (ii) of this Section 1.2(c), in no event shall Merger Sub be required to extend the Offer beyond the Termination Date.
(d) Subject to the terms and conditions of the Offer and accept for payment and pay forthis Agreement, Merger Sub shall (and Parent shall cause the Purchaser to Merger Sub to) accept for payment payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer, as promptly as practicable after the expiration date of the Offer (as it may be extended in accordance with Section 1.2(c)).
(e) Merger Sub may (but shall not be required to), and the Offer Documents shall reserve the right to, extend the Offer for a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act) of not less than three (3) nor more than ten (10) business days immediately following the expiration of the Offer if the number of shares of Company Common Stock validly tendered and not withdrawn is less than ninety percent (90%). Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as so extended by such subsequent offering period, as promptly as practicable after any such shares of Company Common Stock are tendered during such subsequent offering period.
(f) The Company will not tender in response to the expiration Offer any shares of Company Common Stock that are held in treasury by the Company or that are owned, directly or indirectly, by the Company or any of its subsidiaries.
(g) As soon as reasonably practicable on the date of commencement of the Offer, Merger Sub and Parent shall file with the SEC a Tender Offer Statement on Schedule TO (subject the "SCHEDULE TO") with respect to the applicable provisions Offer, which will contain the offer to purchase and form of Rule 14d-11 under the Exchange Actrelated letter of transmittal and summary advertisement (such Schedule TO and such documents included therein pursuant to which the Offer will be made, to together with any supplements or amendments thereto, the extent applicable"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of material fact or omit to state a 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 means of an offer Parent or Merger Sub with respect to purchase (information supplied by the “Company in writing for inclusion in the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to Purchase”) containing correct any information provided by it for use in the terms set forth Offer Documents if and to the extent that such information shall have become false or misleading in this Agreement any material respect. Parent and having only Merger Sub each agrees to take all steps necessary to cause the Minimum Condition Schedule TO as so corrected to be filed with the SEC and the other conditions set forth Offer Documents as so corrected to be disseminated to holders of Company Common Stock, in Annex I heretoeach case as and to the extent required by applicable federal securities laws. Parent The Company and Purchaser agree that its counsel shall be given an opportunity to review and comment on the Offer Documents (and any amendments thereto) prior to Purchase will provide a statement in all appropriate places therein to their being filed with the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements SEC or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse disseminated to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Company Common Stock. Notwithstanding Parent and Merger Sub shall provide the foregoingCompany and its counsel with any written comments or other communications that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents as soon as reasonably practicable after receipt of such comments or other communications. In the event that this Agreement has been terminated pursuant to Section 8.1, Parent and Merger Sub shall promptly terminate the Offer without accepting any shares of Company Common Stock for payment.
(h) Without limiting any other provision of this Agreement, the Purchaser may (but Offer Price shall not be obligated to)adjusted, without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date at any time and from time to time, for such period to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or periods distribution of time as securities convertible into Company Common Stock), reorganization, recapitalization or other like change, if permitted by the Purchaser reasonably believes are necessary terms of Section 5.1, with respect to cause Company Common Stock occurring after the conditions to be satisfied if, at the Initial Expiration Date, any conditions date of this Agreement and prior to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which commencement of the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VII hereof and none of the events conditions set forth in Annex I A hereto (the "Offer Conditions") shall have occurred and or be continuingexisting, within seven (7) Business Days of the Purchaser shalldate hereof, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Merger Sub will commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder a tender offer (the “Exchange Act”)"Offer") the Offer to purchase for cash all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock at of U.S. $24.00 net to the Offer Price. The obligations seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto.
(b) Provided that this Agreement shall not have been terminated in accordance with Article VII hereof, the obligation of the Purchaser Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior shall be subject only to the expiration satisfaction or waiver of the Offer Conditions including the condition that at least that number of shares of Company Common Stock equivalent to a majority of the total issued and not withdrawn outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable"Minimum Condition"). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase Merger Sub will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except thatnot, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall Board): (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) amount or change the form of consideration payable in the Offer, (iviii) decrease the number of shares of Company Common Stock sought in the Offer, (viv) impose additional conditions to the Offer, (viv) amend change any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer Condition or (vii) amend any other term of the Offer in a manner that is if any such change or amendment would be materially adverse to the holders of the shares Company Common Stock (other than Parent or Merger Sub) or (vi) except as provided below, extend the Offer if all of Common Stockthe Offer Conditions have been satisfied. Notwithstanding Subject to the foregoingterms and conditions hereof, the Purchaser may Offer shall remain open until midnight, New York City time, on the date that is twenty (but shall not be obligated to20) Business Days after the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the Company Board, Merger Sub may (w) extend the Offer (x) beyond the Initial Expiration Date from time to timeOffer, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, if at the Initial Expiration Date, any conditions to scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one (1) or more periods not to (none of which shall exceed an aggregate of ten (10) Business Days if, Days) until such time as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such periodor waived, (yx) extend the Offer for any such period as may be required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“"SEC”") or the staff thereof applicable to the Offer, (y) extend the Offer and for one (z1) on one or more occasions periods (all each such occasions aggregating period to be for not more than five (5) Business Days and such extensions to be for an aggregate period of not more than twenty (20) Business Days) Days beyond the latest expiration date that would otherwise be permitted under clause (xw) or (yx) of this sentence, if, ) if on such expiration date, all of date the conditions to the Purchaser’s obligation to accept payment of the Common Stock are Offer Conditions shall have been satisfied or earlier waived, waived but the there shall not have been tendered that number of shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less which would equal more than ninety percent (90%) 80% of the outstanding shares of Company Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause or (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up any reason for one (1) or more periods, each period to be for not more than ten (10) Business Days. In the event the Minimum Condition is satisfied Days and the Purchaser purchases the shares such extensions to be for an aggregate period of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.more than
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The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events or conditions set forth in subparagraphs (a) through (e) of Annex I shall have occurred and be continuing, the Purchaser shallcontinuing and not have been waived by Parent or Merger Sub, as promptly as reasonably practicable following and, in any event, within five (5) Business Days of the date of this Agreement, Parent and Merger Sub shall amend the Pending Offer to reflect the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), 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 for cash all of the shares of Common Stock at the Offer Priceterms hereof. The obligations of the Purchaser Merger Sub to accept for payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for) any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not properly withdrawn shall be subject to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the final expiration of the Offer that number of shares of Company Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, which represents at least eighty percent (80%) a majority of the shares of Company Common Stock outstanding on a Fullyfully-Diluted Basis diluted basis, including after giving effect to the issuances of shares of Company Common Stock pursuant to Section 2.12 (the “Minimum Condition”) ), and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). I. Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver (subject to the provisions of this Agreement) by the Parent or the Purchaser Merger Sub of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shallMerger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer, which shall initially be the later of the expiration date of the Pending Offer as of the date of this Agreement or the date that is fifteen (15) Business Days after the date of this Agreement; provided, however, that (x) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless as extended in accordance with this Section 1.1(aAgreement), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any all conditions to the Offer shall not have been satisfied or waived (waived, Merger Sub may, from time to time, in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Companyits sole discretion, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, such period as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such periodMerger Sub may determine, (y) Merger Sub may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission SEC (“SEC”or the staff thereof) or the staff thereof NYSE applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser Merger Sub may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act Act; provided that, in no event shall the Offer extend beyond the Walk-Away Date without the mutual written consent of the Company and Parent. Merger Sub expressly reserves the right from time to time to waive any of the conditions set forth in Annex I (a other than the Minimum Condition, the Registration Condition and the Listing Condition) or to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer, reduce the time period during which the Offer shall remain open or, except for any extension required or permitted hereunder, extend the Offer, or amend any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock.
(b) Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable and, in any event, within five (5) Business Days of the date of this Agreement, in order to reflect the execution of this Agreement and the terms hereof, Parent shall file or cause to be filed with the SEC (i) an amendment to Parent’s registration statement on Form S-4 (as it may be amended or supplemented, the “Subsequent Offering PeriodForm S-4”) and (ii) an amendment to Parent’s and Merger Sub’s tender offer statement on Schedule TO, as amended, each originally filed on March 5, 2010 with respect to the Pending Offer (such schedule together with the Form S-4, and the documents included therein pursuant to which the Offer is made, and any amendments and supplements thereto, the “Offer Documents”). Parent shall use commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. Subject to the Company’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC. In addition, Parent and Merger Sub shall provide the Purchaser Company and its counsel with (i) any comments or communications, whether written or oral, that Parent, Merger Sub or their counsel may increase receive from time to time from the SEC or its staff with respect to the Offer Price Documents promptly after Parent’s or Merger Sub’s, as the case may be, receipt of such comments, and (but not change any other condition ii) a reasonable opportunity to participate in the response of Parent or Merger Sub to those comments and to provide comments on that response.
(c) In the event this Agreement is terminated pursuant to Section 8.1 prior to the Offer) Acceptance Time, Parent and extend Merger Sub shall promptly terminate the Offer without accepting any shares of Company Common Stock previously tendered.
(d) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued by virtue of the Offer, no dividends or other distributions of Parent shall relate to such fractional share interests and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of such fractional share interests, Parent shall pay to each holder of shares of Company Common Stock who would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) an amount in cash equal to the extent required product obtained by law multiplying (i) the fractional share interest to which such holder would otherwise be entitled by (ii) the average closing sales price, rounded to four decimal points, of shares of Parent Common Stock on the NYSE (as reported in connection with such increasethe Wall Street Journal, in each case in its sole discretion and without New York City edition) for the consent period of the Companyfive (5) consecutive trading days ending on the second full trading day prior to the Acceptance Time (the “Parent Common Stock Cash Value”).
Appears in 1 contract
The Offer. (a) Provided that this The Merger Agreement shall not have been terminated in accordance with Section 8.1 contemplates the commencement of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), 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 for cash all of the shares issued and outstanding Class A Shares and all of Common Stock at the Offer Priceissued and outstanding Class B Shares for the Per Share Amount, net to the seller in cash, without interest and prescribes conditions to consummation of the Offer. The obligations Merger Agreement provides that, without the prior written consent of Beringer, Purchaser may not: - Decrease or change the form of the Purchaser Per Share Amount; - Decrease the number of Shares sought to accept for payment and to pay for any shares of Common Stock validly tendered pursuant be purchased in the Offer; - Amend or waive the Minimum Condition; - Impose additional conditions to the Offer on Offer; or prior to the expiration - Amend any other term of the Offer and not withdrawn in any manner adverse to the holders of Shares. The "Minimum Condition" requires that there shall be subject to (i) there being have been validly tendered and not withdrawn prior to the final expiration of the Offer that Expiration Date a number of shares of Common Stock whichShares that, together with any Shares that Purchaser has the shares of Common Stock right to acquire pursuant to the Tender Agreement (excluding Shares subject to the Tender Agreement that have been validly tendered and not withdrawn prior to the Expiration Date) and any Shares then beneficially owned by the Parent ▇▇▇▇▇▇'▇ or the Purchaserany of its subsidiaries, represents constitutes at least eighty percent (80%) a majority of the shares total voting power of Common Stock the outstanding securities of Beringer entitled to vote in the election of directors or in a merger (the "Voting Securities"), calculated on a Fully-Diluted Basis fully diluted basis on the date of purchase ("on a fully diluted basis" having the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, following meaning: as of any date, the number of the shares of Common Stock issued and Voting Securities outstanding, together with the shares number of Common Stock that may be issued by the Company Voting Securities Beringer is then required to issue pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise under employee stock options, warrants, benefit plans or conversion prices on a per share basis at other rights to purchase or below acquire Voting Securities, assuming the Offer Price, whether absence of any vesting requirements or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreementconditions). Subject to If, on the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any all conditions to the Offer shall not have been satisfied or waived waived, Purchaser may (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written ▇▇▇▇▇▇▇▇'▇ request of the Company, will) extend the Offer Expiration Date from time to time for one or more such additional periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth 30 calendar days in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but order to permit such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basissatisfied; provided, however, that Purchaser’s decision the Expiration Date may not be extended beyond January 31, 2001. Notwithstanding that all the conditions to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchasersatisfied, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser ▇▇▇▇▇▇'▇ may, in its sole discretion, extend the Expiration Date for up to 10 business days. In the event that the Minimum Condition has been satisfied and all other conditions to the Offer have been satisfied or waived but less than 100% of the Class A Shares and 90% of the Class B Shares, calculated on a fully diluted basis, have been validly tendered and not withdrawn on the Expiration Date, Purchaser will accept and purchase all of the Shares tendered in the initial offer period and may notify stockholders of Purchaser's intent to provide a “subsequent offering period” in accordance Subsequent Offer Period which shall not exceed 10 business days. Purchaser will, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and purchase all Shares validly tendered and not withdrawn pursuant to the Offer as soon as permissible after the Expiration Date of the Offer. ▇▇▇▇▇▇'▇ will cause Purchaser to have sufficient funds make all payments required to be made pursuant to the Offer and the Merger and ▇▇▇▇▇▇'▇ shall cause Purchaser to comply with Rule 14d-11 promulgated all of its obligations under the Exchange Act Merger Agreement. The Company represented and warranted to ▇▇▇▇▇▇'▇ in the Merger Agreement that: - The Beringer Board, at a meeting duly called and held, unanimously (a “Subsequent Offering Period”). In additionwith one Beringer Board member absent): - Approved and adopted the Merger Agreement and approved the Tender Agreement and the transactions contemplated thereby, the Purchaser may increase including the Offer Price and the Merger (but such adoption and approval being sufficient to render Section 203 of the Delaware General Corporation Law (the "DGCL") inapplicable to the Merger Agreement and the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger, assuming that ▇▇▇▇▇▇'▇ and Purchaser are not change "interested stockholders," as such term is defined in Section 203 of the DGCL, immediately prior to the execution of the Merger Agreement and the Tender Agreement by ▇▇▇▇▇▇'▇ and Purchaser); - Recommended that the stockholders of Beringer accept the Offer, tender their Shares pursuant to the Offer and adopt the Merger Agreement and approve the transactions contemplated thereby, including the Merger; and - Determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are fair to and in the best interests of the stockholders of Beringer, and - ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇▇'▇ financial advisor, rendered its opinion to the Beringer Board to the effect that the consideration to be received by the holders of Shares pursuant to the Offer and the Merger is fair to such holders from a financial point of view. The Merger Agreement provides that, if requested by ▇▇▇▇▇▇'▇, following the purchase by Purchaser of any other condition Shares pursuant to the Offer and thereafter the purchase of Shares pursuant to the Tender Agreement, and from time to time thereafter as Shares are acquired by Purchaser, ▇▇▇▇▇▇'▇ is entitled to designate such number of directors, rounded up to the next whole number, on the Beringer Board as is equal to the product of the total number of directors on the Beringer Board (determined after giving effect to the directors so appointed or elected pursuant to such provision and including current directors serving as officers of Beringer) multiplied by the percentage that the aggregate number of Shares beneficially owned by ▇▇▇▇▇▇'▇ or its affiliates (including such Shares as are accepted for payment pursuant to the Offer, but excluding Shares held by Beringer) bears to the total number of Shares then outstanding. At such times, if requested by ▇▇▇▇▇▇'▇, Beringer will also cause each committee of the Beringer Board to include persons designated by ▇▇▇▇▇▇'▇ constituting the same percentage of each such committee as designees of ▇▇▇▇▇▇'▇ are of the Beringer Board. The Company will, upon request by ▇▇▇▇▇▇'▇, promptly increase the size of the Beringer Board or use its best efforts to secure the resignations of such number of directors as is necessary to enable designees of ▇▇▇▇▇▇'▇ to be elected to the Beringer Board and shall cause designees of ▇▇▇▇▇▇'▇ to be elected to the Beringer Board. In the event that designees of ▇▇▇▇▇▇'▇ are appointed or elected to the Beringer Board, until the Effective Time, the Beringer Board shall include at least three directors who were directors on the date of the Merger Agreement and who are neither officers of Beringer nor designees, stockholders, affiliates or associates of ▇▇▇▇▇▇'▇ (the "Independent Directors"). If no Independent Directors remain, the other directors shall designate three persons to fill the vacancies, none of whom shall be either an officer of Beringer or a designee, stockholder, affiliate or associate of ▇▇▇▇▇▇'▇, and such persons shall be deemed to be Independent Directors for purposes of the Merger Agreement. Prior to the Effective Time, the affirmative vote of a majority of the Independent Directors is required to: - amend or terminate the Merger Agreement on behalf of Beringer, - exercise or waive any of ▇▇▇▇▇▇▇▇'▇ rights or remedies under the Merger Agreement, - extend the Offer to time for performance of ▇▇▇▇▇▇'▇ obligations under the extent required Merger Agreement, or - take any other action by law Beringer in connection with such increasethe Merger Agreement required to be taken by the Beringer Board. Pursuant to the Merger Agreement, in each case in its sole discretion and without until the consent Effective Time, the affirmative vote of a majority of the CompanyIndependent Directors is sufficient to cause Beringer to enforce any of its rights and remedies under the Merger Agreement.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall9.1, as promptly as reasonably practicable following the execution of this Agreement (possible but in any no event no later than seven five (5) business days after the public announcement of the execution hereof by the parties, Parent and delivery of this Agreement), GP shall cause Acquisition 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 amended (the “"Exchange Act”")) , the Offer Offer; and to purchase for cash all of cause Acquisition to use its best efforts to consummate the shares of Common Stock at the Offer PriceOffer, including, without limitation, engaging an information agent in connection therewith. The obligations of the Purchaser to Acquisition shall accept for payment issued and to pay for any outstanding shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration common stock, $0.001 par value of the Offer Company (individually a "Share" and not withdrawn shall be subject to (icollectively, the "Shares") there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date associated Rights which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock been validly tendered and not withdrawn pursuant to the Offer promptly after at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”"Minimum Stock Condition") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I heretoArticle 7. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Acquisition expressly reserves the right to waive or modify any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that Parent, GP and Acquisition agree that no change may be made without the prior written consent of the Company (such consent to be authorized by which decreases the board of directors of the Company or a duly authorized committee thereof)Per Share Amount, neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change which changes the form of consideration payable to be paid in the Offer, (iv) decrease which reduces the maximum number of shares of Common Stock sought to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (v) impose additional on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingShares, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any which imposes conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not addition to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions those set forth in clause Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (ii) except that Acquisition may extend the expiration date of Annex I (other than subparagraph (c) thereof) are not satisfiedthe Offer beyond September 30, but such conditions are reasonably capable of being satisfied in such period, (y) for any period 1999 as required by to comply with any rule, regulation, interpretation, regulation or position interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (“SEC”including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by Acquisition at any time to exercise any of the staff thereof applicable foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. The Per Share Amount shall be paid net to the Offer seller in cash, less any required withholding of taxes, upon the terms and (z) on one or more occasions (all subject to such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all conditions of the conditions to Offer. The Company agrees that no Shares held by the Purchaser’s obligation to accept payment Company or any of its subsidiaries will be tendered in the Common Stock are satisfied or earlier waivedOffer.
(b) As soon as practicable after the date hereof, but Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the number of shares of Common Stock validly tendered Securities and Exchange Commission (and not withdrawnthe "SEC") pursuant a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the Common Stock then owned by "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the PurchaserCompany and its counsel with any comments which Parent, represents less than ninety percent (90%) Acquisition or their counsel may receive from the SEC or the staff of the outstanding shares SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of Common Stock applicable federal securities laws. The information provided and to be provided by Parent, GP and Acquisition for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a Fully-Diluted Basis; material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that Purchaser’s decision no representation or warranty is made by Parent, GP or Acquisition with respect to extend information supplied by the Company or any of its stockholders for inclusion in the Offer Documents. The Company agrees that information provided by the Company or any of its subsidiaries for inclusion or incorporation in the case of this clause (z) Offer Documents shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, ifnot, on the Initial Expiration Date date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the events set forth circumstances under which they were made, not misleading. Parent, GP, Acquisition and the Company each agree promptly to correct any information provided by it for use in subparagraph (c) of Annex I the Offer Documents if and to the extent that such information shall have occurred become false or misleading in any material respect and Parent, GP and Acquisition further agree to take all steps necessary to cause the Offer Documents as so corrected to be continuing filed with the SEC and shall not have been waived by the Purchaser, thento be disseminated to holders of Shares, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyapplicable federal securities laws.
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The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven five business days after the public announcement of the execution and delivery of this Agreementhereof), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) a tender offer (the Offer to purchase "Offer") for cash any and all of the outstanding shares of Common Stock Stock, par value $.03 per share (the "Shares"), of the Company at a price of U.S.$45.00 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "Offer Price") and, subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, shall consummate the Offer Pricein accordance with its terms ("fully diluted basis" means issued and outstanding Shares and Shares subject to 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 Company or securities convertible or exchangeable for such capital stock). The obligations of the Purchaser to commence the Offer and to accept for payment and to pay for any shares of Common Stock Shares validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not properly withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable)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 and having only Agreement, the Minimum Condition and the other conditions set forth in Annex I A hereto. Parent The Purchaser shall not amend or waive the Minimum Condition and Purchaser agree that shall not decrease the Offer to Purchase will provide a statement in all appropriate places therein to Price or decrease the effect that the Purchaser’s obligation to purchase shares number of Common Stock pursuant to the Offer is not conditioned on Shares sought or amend any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement other condition of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions in any manner adverse to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms holders of the Offer, except that, Shares (other than with respect to insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1) without the prior written consent of the Company (such consent to be authorized by the board Board of directors Directors of the Company (the "Company Board") or a duly authorized committee thereof); provided, neither however, that if on the Parent nor the Purchaser shall (i) amend or waive satisfaction initial scheduled expiration date of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease which shall be 20 business days after the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of date the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingcommenced, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any all conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided thatwaived, the Purchaser shallmay, upon the written request of the Companyfrom time to time, in its sole discretion, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of Purchaser shall, if the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied Parent and the Purchaser purchases 8 have not obtained the shares approvals of Common Stock pursuant to any Governmental Entity (as defined in Section 3.4) as required under Section 5.4, extend the Offer, expiration date for a period of the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under lesser of (i) 2 business days after the Exchange Act date that all such approvals have been obtained and (a “Subsequent Offering Period”)ii) 35 days after such initial scheduled expiration date. In addition, the Purchaser Offer Price may increase be increased, and the Offer Price (but not change any other condition to the Offer) and extend the Offer may be extended to the extent required by law in connection with such increase, increase in each case in its sole discretion and 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 (as it may be extended), the Shares validly tendered and not withdrawn pursuant to the Offer equal less than 90% of the outstanding Shares, the Purchaser may extend the Offer for a period not to exceed 10 business days, notwithstanding that all conditions to the Offer are satisfied as of such initial expiration date of the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the provisions of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallAgreement, as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven five business days after the execution and delivery date of this Agreement), Sub shall, and Parent shall cause Sub to, commence (within the meaning Offer. The obligation of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedSub to, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of Parent to cause Sub to, commence the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to and accept for payment payment, and to pay for for, any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to the terms and conditions set forth in Exhibit A (any of which may be waived by Sub in its sole discretion, subject to limitations imposed by applicable law). Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) there being validly increase the percentage of outstanding shares of Common Stock required to be tendered and not withdrawn prior pursuant to the final expiration of Minimum Tender Condition (as defined in Exhibit A), (ii) reduce the Offer that number of shares of Common Stock whichsubject to the Offer, together with (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) modify or add to the conditions set forth in Exhibit A, (v) except as provided in the following sentence, extend the Offer or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (u) extend the Offer for a period of not more than 20 business days beyond the date on which the Offer would otherwise expire if on the date of such extension any of the conditions to Sub's obligation to purchase shares of Common Stock then beneficially owned by the Parent shall not be satisfied, until such time as such conditions are satisfied or the Purchaser, represents at least eighty percent waived (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth than an extension in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant order to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable obtain financing pursuant to the Stock Option AgreementFinancing Condition (as defined in Exhibit A) for which an extension may be made only pursuant to clause (x) below), (w) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (x) extend the Offer through and including October 14, 1998 solely in order to obtain financing pursuant to the Financing Condition, and (y) extend the Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (u) or (w) of this sentence. Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser Sub shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept Sub to, pay for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer, but no later than as required by applicable law.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer (subject Statement on Schedule 14D-1 with respect to the applicable provisions of Rule 14d-11 under the Exchange ActOffer, to the extent applicable). The Offer which shall be made by means of contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the offer will be made, together with any supplements or amendments thereto, the "Offer Documents") and on such date shall mail the Offer Documents to the Company's stockholders. The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition "Exchange Act"), and the other conditions set forth rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in Annex I heretoorder 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 Sub with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent, Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Purchaser agree that Sub further agrees to take all steps necessary to amend or supplement the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser Documents and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions Offer Documents as so amended or supplemented to be satisfied if, at filed with the Initial Expiration Date, any conditions SEC and to be disseminated to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then's stockholders, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied case as and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law applicable law. Parent and Sub agree to provide the Company and its counsel in connection writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such increase, in each case comments. The Company agrees to share with Parent and Sub information in its sole discretion possession necessary to enable Parent and without Sub to prepare the consent Offer Documents.
(c) Subject to the terms and condition of the CompanyOffer, Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 10.1 and so long as none of the events or circumstances set forth in Annex I A hereto shall have occurred and be continuing, not later than the Purchaser shall, as promptly as reasonably practicable seventh business day following the date of public announcement of the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Parent shall cause 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 amended (the “Exchange Act”"EXCHANGE ACT")) ), the Offer at a price equal to purchase for cash all of the shares of Common Stock at the Offer PricePrice for each share of Company Common Stock. The obligations of Subsidiary to consummate the Purchaser Offer, to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or and not withdrawn prior to the expiration of the Offer and not withdrawn shall be subject solely to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other those conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanANNEX A. It is agreed that the conditions to the Offer set forth on ANNEX A are solely for the benefit of Subsidiary and may be asserted only by Subsidiary and Subsidiary expressly reserves the right, as of in its sole discretion, to waive any datesuch condition; PROVIDED, HOWEVER, that without the number prior written consent of the shares of Common Stock issued and outstandingCompany, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or Subsidiary shall not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of waive the Minimum Condition and the other conditions set forth (as defined in Annex I hereto as of any ANNEX A). The initial expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer "INITIAL EXPIRATION DATE") shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) 20th business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) day following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act).
(b) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Subsidiary expressly reserves the right right, in its sole discretion, to waive or modify and make changes to the terms and conditions of the Offer; PROVIDED, except thatHOWEVER, that without the prior written consent of the Company (such consent to Company, no modification or change may be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall made which (i) amend or waive satisfaction of decreases the Minimum Condition, Common Stock Price (except as permitted by Section 1.5); (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, Offer (other than by adding consideration); (iii) changes the Minimum Condition; (iv) decrease limits the number of shares of Company Common Stock sought in pursuant to the Offer, ; (v) impose additional changes the material conditions to the Offer, (vi) amend any of the conditions set forth Offer in Annex I in any a manner adverse to the holders of the shares of Company Common Stock, ; or (viivi) amend any other term of the Offer in a manner that is materially adverse imposes additional material conditions to the holders of the shares of Common StockOffer. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to)Subsidiary may, without the consent of the Company Company, (i) extend and re-extend the Offer (x) beyond the Initial Expiration Date from time to time, on one or more occasions for such period or periods as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed 20 business days at a time), if at the then-scheduled expiration date of time as the Purchaser reasonably believes are necessary to cause Offer any of the conditions to Subsidiary's obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived waived; (in which event the term “Initial Expiration Date” shall mean the latest time ii) extend and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, re-extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“the "SEC”") or the staff thereof applicable to the Offer; and (iii) extend and re-extend the Offer on one or more occasions for an aggregate period of not more than 15 business days if the Minimum Condition has been satisfied but less than 90% of the outstanding Company Common Stock (on a fully diluted basis) has been validly tendered and not properly withdrawn as of the Initial Expiration Date; provided, however, that from and after any extension pursuant to this clause (iii), Subsidiary shall be deemed to have waived the conditions to the Offer set forth in ANNEX A, other than the Minimum Condition and except insofar as the conditions relate to or are based upon (x) the illegality of the consummation of the Offer or the Merger; (y) breach by the Company of any covenant contained in this Agreement; or (z) failure of any representation or warranty made by the Company in this Agreement to be true and correct as of the date of this Agreement. Notwithstanding the foregoing, if requested by the Company, Subsidiary shall, and Parent agrees to cause Subsidiary to, extend the Offer on one or more occasions (all such occasions aggregating not more than twenty Business Days) but in no event beyond the latest Outside Date (as defined in Section 10.1(b))) if at the then-scheduled expiration that would otherwise be permitted under clause (x) or (y) date of this sentence, if, on such expiration date, all the Offer any of the conditions to the Purchaser’s obligation Subsidiary's obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied or waived and all such conditions are reasonably capable of being satisfied. Subject to the terms and the conditions of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (Offer and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any as soon as practicable after expiration of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.the
Appears in 1 contract
Sources: Agreement and Plan of Merger (Candover Investments PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Subject to the terms of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shallAgreement, as promptly as reasonably practicable following the execution of this Agreement (but in any no event no later than seven business days five Business Days) after the execution and delivery date of this Agreement), commence (within Merger Sub shall, and Parent shall cause Merger Sub to, amend the meaning Pending Offer to reflect the execution, terms and conditions of Rule 14d-2 under this Agreement. The date on which the Securities Exchange Act of 1934, as Pending Offer is amended, and which shall be the rules and regulations promulgated thereunder (date hereof, is referred to in this Agreement as the “Exchange ActOffer Amendment Date”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock validly tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A (the “Offer Conditions”). The Offer shall expire at midnight, New York City time, on the 10th Business Day following the Offer Amendment Date (such time or prior such subsequent time to which the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, is extended in accordance with the terms of the Offerthis Agreement, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right right, in its sole discretion, to waive waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall not (i) amend or waive satisfaction reduce the number of shares of Company Common Stock subject to the Minimum ConditionOffer, (ii) decrease reduce the Offer Price, (iii) change, modify or waive the Minimum Tender Condition; provided that, Parent may, at any time in its sole discretion and without the consent of the Company, amend the Minimum Tender Condition such that the determination of the number of outstanding shares of Company Common Stock on a fully diluted basis shall exclude all options and convertible securities with an exercise price or conversion price greater than the Offer Price, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in a manner adverse to any holders of Company Common Stock, (v) except as otherwise provided in this Section 1.1(a), extend or otherwise change the Expiration Date of the Offer, (vi) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, Offer or (vii) amend otherwise amend, modify or supplement any other term of the terms of the Offer in a manner that is materially adverse to the any holders of the shares of Company Common StockStock in their capacity as such. Notwithstanding anything in this Agreement to the foregoingcontrary, the Purchaser may (but shall not be obligated to)Merger Sub may, in its sole discretion, without the consent of the Company Company, (A) without limiting Parent’s or Merger Sub’s obligations under the following sentence, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days (xor such longer period as the parties hereto may agree) beyond the Initial each, if on any then-scheduled Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer any of the Offer Conditions shall not have been satisfied or, to the extent waivable by Parent or waived Merger Sub, waived, and (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, B) extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. Parent and Merger Sub agree that, to the extent requested in writing by the Company prior to any then-scheduled Expiration Date of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) (A) if any of the Offer Conditions set forth in paragraph (a) or (b) of clause (ii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived, and (z) provided that it is reasonably expected that such condition or conditions shall be satisfied prior to the Termination Date, extend the Offer on one or more occasions occasions, in consecutive increments of up to ten Business Days each (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied (but not beyond the Termination Date) and (B) if any of the Minimum Tender Condition or the Offer Conditions set forth in paragraph (d) or (e) of clause (ii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the other Offer Conditions set forth in Exhibit A shall be satisfied on such occasions aggregating then-scheduled Expiration Date, extend the Offer on one or more occasions, in consecutive increments of up to five Business Days (or such longer period as the parties hereto may agree) each, for an aggregate period of time of not more than twenty 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision (i) Merger Sub shall not be required to extend the Offer in beyond the case of Termination Date or at any time Parent or Merger Sub is permitted to terminate this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) Agreement pursuant to Article VIII and (fii) (excluding any willful if the Minimum Tender Condition is not satisfied, but all other Offer Conditions are satisfied or intentional breach of any material obligation of the Company) on Annex I and of its right waived, Merger Sub shall only be obligated to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up one additional period not to exceed and not less than ten (10) Business Days. In .
(b) Subject to the event terms and conditions of the Minimum Condition is satisfied Offer and the Purchaser purchases the this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 1.1(e)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the Expiration Date of the Offer. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer, conditions of the Purchaser mayOffer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right, in its sole discretion, to elect to provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”) following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all shares validly tendered during such subsequent offering period. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.1, prior to the acceptance for payment of Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holders thereof.
(c) As promptly as reasonably practicable following the Offer Amendment Date, Parent and Merger Sub shall file with the SEC an amendment to its Tender Offer Statement on Schedule TO filed originally on May 10, 2012 under cover of Schedule TO with respect to the Pending Offer, which shall reflect the execution, terms and conditions of this Agreement and contain a supplement to the offer to purchase and a related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”). The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase to be set forth in the Offer Price (but not change Documents. Each of Parent, Merger Sub and the Company shall promptly correct any other condition information supplied by it for inclusion or incorporation by reference in the Offer Documents if and to the Offer) extent that such information shall have become false or misleading in any material respect, and extend each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Company Common Stock, in each case as and to the extent required by law applicable Federal securities Laws. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, and shall use its reasonable best efforts to give the Company the opportunity to participate in connection any substantive telephonic communications with such increase, in each case in its sole discretion and without the consent staff of the SEC related thereto. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable consideration to any such comments.
(d) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer, the Merger or otherwise pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable Law. To the extent that amounts are so withheld and paid over by Merger Sub to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Merger Sub.
(f) For purposes of this Agreement (including exercise of the Top-Up Option) and the Offer, unless otherwise mutually agreed to by the Company and Parent, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares of Company Common Stock underlying such notices of guaranteed delivery have been delivered to Merger Sub.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement hereof and none of the events set forth in Annex I hereto shall have occurred and be continuingexisting, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven ten business days after the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer PriceOffer. The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Common Stock Company Shares validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration satisfaction of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other those conditions set forth in Annex I heretoI. Purchaser expressly reserves the right from time to time, subject to Sections 1.1(b) and (c) hereof, to waive any such condition, to increase the Per Share Amount, or to make any other changes in the terms and conditions of the Offer. “Fully-Diluted Basis” The Per Share Amount shall meanbe net to seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer taxes payable by Seller. The Company agrees that no Company Shares held by the Company or any of its subsidiaries (as defined in Section 9.7(j)) will be tendered pursuant to the Offer.
(b) Without the prior written consent of any datethe Company, neither Parent nor Purchaser shall decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of the shares of Common Stock issued and outstandingCompany Shares sought, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, amend or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior waive satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and (as defined in Annex I), extend the other conditions Offer (except as set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant Section 1.1(d)) or impose additional conditions to the Offer promptly after the expiration or amend any other term of the Offer (subject in any manner adverse to the applicable provisions holders of Rule 14d-11 under the Exchange Act, to the extent applicable). Company Shares.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer that will comply in all material respects with the provisions of all applicable federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement, if any (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to holders of Company Shares as required by applicable federal securities laws. Parent and Purchaser agree promptly to correct the Schedule TO or the Offer Documents if and to the extent that any shall have become false or misleading in any material respect (and the Company, with respect to written information supplied by it specifically for use in the Schedule TO or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given the opportunity to review and comment on any Offer Documents before they are filed with the SEC. The Parent shall provide the Company in writing with any comments the Parent or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
(d) The Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) 20 business days (as defined in Rule 14d-1 promulgated under the Exchange Act) from the date of commencement, each a “Business Day”) following including the date of the commencement of the Offer (within as the meaning of first business day in accordance with Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree agrees that they it shall not terminate or withdraw the Offer unless, or extend the expiration date of the Offer unless at the Initial Expiration Date, expiration date of the Minimum Condition shall not have been satisfied or Offer the other conditions to the Offer described in Annex I hereto shall not have not been satisfied or earlier waived. The Purchaser expressly reserves If at the right to waive or modify the terms expiration date of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth Offer described in Annex I in any manner adverse hereto shall not have been satisfied or earlier waived, Parent or Purchaser may, from time to time, for up to 10 business days on each such occasion beyond the holders of then scheduled expiration date, extend the shares of Common Stock, or (vii) amend any other term expiration date of the Offer in a manner that is materially adverse until the date such conditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Company Shares tendered pursuant to the holders of the shares of Common StockOffer. Notwithstanding the foregoing, the Parent or Purchaser may (but shall not be obligated to)may, without the consent of the Company Company, (i) extend the expiration date of the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to it may be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (yextended) for any period required by any rule, regulation, interpretation, or position applicable rules and regulations of the Securities and Exchange Commission (“SEC”) or SEC in connection with an increase in the staff thereof applicable consideration to be paid pursuant to the Offer and (zii) on one or more occasions provided that Parent and Purchaser waive the conditions of the Offer described in Annex I hereto (all such occasions aggregating not more other than twenty Business Daysthe Minimum Condition and the conditions in clauses (iv) beyond the latest expiration that would otherwise be permitted under clause (xa) or and (yh) of this sentenceAnnex I) and agree not to assert such conditions as a basis for not consummating the Offer, ifextend the expiration date of the Offer (as it may be extended) for up to 10 business days, if on such expiration date, all of date the conditions to for the Purchaser’s obligation to accept payment of the Common Stock are Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of shares of Common Stock Company Shares that have been validly tendered (and not withdrawn) pursuant , when added to the Company Shares, if any, beneficially owned by Parent represents less than 90% of the then issued and outstanding Company Shares. If at the expiration date of the Offer, together with any of the Common Stock then owned by Parent conditions of the Offer described in Annex I hereto (other than the Minimum Condition and the Purchaserconditions in clauses (iv) (d), represents less than ninety percent (90%e), (f) of the outstanding shares of Common Stock on a Fully-Diluted Basis; providedand (h) ) have not been satisfied or earlier waived, howeverthen Purchaser shall, that Purchaser’s decision and Parent shall cause Purchaser to extend the Offer in the case of this clause (z) shall constitute from time to time until such conditions are satisfied or waived for a waiver period not to exceed 20 business days after expiration of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the initial Offer for up to ten (10) Business Daysperiod. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock Company Shares pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” of not more than 20 business days in accordance with Rule 14d-11 promulgated under the Exchange Act Act.
(a “Subsequent Offering Period”). In addition, e) Parent shall provide or cause to be provided to Purchaser all of the funds necessary to purchase any shares of Company Common Stock that Purchaser may increase the Offer Price (but not change any other condition becomes obligated to the Offer) and extend purchase pursuant to the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the CompanyPurchase.
Appears in 1 contract
Sources: Merger Agreement (Bioreliance Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as As promptly as reasonably practicable following the execution of this Agreement (but practicable, and in any event no later than seven business days after within five (5) Business Days of the execution and delivery date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer an offer to purchase for cash all of the outstanding shares of Company Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this AgreementMerger Sub, and the prior satisfaction or waiver by the of Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offerto cause Merger Sub, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all for any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after shall be subject only to the expiration satisfaction or waiver by Merger Sub of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) A hereto (the “Initial Expiration DateOffer Conditions”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right right, in its sole discretion, to waive any Offer Condition in whole or in part, at any time or from time to time, or to modify the terms or conditions of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Merger Sub shall not, and Parent nor the Purchaser shall not permit Merger Sub to, (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease reduce the Offer Price, (iiiii) change the form of consideration payable in the Offer, (iviii) decrease reduce the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions subject to the Offer, (iv) waive or change the Minimum Condition or the Termination Condition (each as defined in Annex A), (v) add to the Offer Conditions, (vi) terminate, or extend or otherwise amend any or modify the expiration date of the conditions Offer except as required or permitted by Section 1.1(b) or (vii) amend, modify or supplement any Offer Condition or any term of the Offer set forth in Annex I this Agreement in any a manner adverse to the holders of the shares of Company Common Stock. The Company agrees that no Company Common Stock held by the Company, Merger Sub or any of their respective Subsidiaries will be tendered in the Offer; provided that the Company shall be permitted to tender Company Common Stock held or beneficially owned by the Company pursuant to or in respect of a Company Plan or a trust that relates to obligations pursuant to a Company Plan.
(viib) amend any other term The Offer shall expire on the date that is twenty (20) Business Days after the commencement of the Offer in a manner that is materially adverse (determined using Rule 14d-1(g)(3) of the Exchange Act); provided, however, that, subject to the holders provisions of Article VIII, if at any scheduled expiration date of the shares of Common Stock. Notwithstanding the foregoingOffer, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer Conditions shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offerwaived, as so extended by the Purchaser, shall so expire); provided that, the Purchaser Merger Sub shall, upon the written request of the Companyand Parent shall cause Merger Sub to, extend the Offer for one or more periods not consecutive increments, each lasting until the earliest to exceed an aggregate occur of ten (10i) a date that is no more than five (5) Business Days if, as after such previously scheduled expiration date (or such other period of any expiration date, all of time to which the conditions set forth Company may consent in clause writing) or (ii) nine (9) months from the date hereof (the “Walk-Away Date”); provided further, that Merger Sub may (and shall where fewer than 90% of Annex I the total shares of Company Common Stock then outstanding have been accepted for payment in the Offer or are to be acquired pursuant to the exercise of the Top-Up Option immediately following the Acceptance Time) provide a subsequent offering period (other than subparagraph (ca “Subsequent Offering Period”) thereof) are not satisfiedafter the expiration of the Offer, but such conditions are reasonably capable in accordance with Rule 14d-11 under the Exchange Act. Notwithstanding the foregoing, without the consent of being satisfied in such periodthe Company, (y) Merger Sub shall have the right to extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”) or the its staff thereof applicable to the Offer.
(c) Subject to the terms of the Offer and (z) on one this Agreement and the satisfaction, or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) waiver by Merger Sub, of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, (i) accept for payment of the Common Stock are satisfied or earlier waived, but the number of all shares of Company Common Stock validly tendered (and not withdrawn) validly withdrawn pursuant to the OfferOffer promptly after the expiration date thereof (as the same may be extended or required to be extended, together with the Common Stock then owned by Parent “Expiration Date”) and pay for such shares as soon as practicable (and, in any event, no more than three (3) Business Days) after the Purchaser, represents less than ninety percent Expiration Date or (90%ii) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of any shares of Company Common Stock tendered during any Subsequent Offering Period, accept for payment and pay for all such shares of Company Common Stock validly tendered and not validly withdrawn as soon as practicable (and, in any event, no more than three (3) Business Days) following the valid tender thereof. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with Section 1.1(b)), unless this clause (zAgreement is validly terminated in accordance with Section 8.1. Nothing contained in this Section 1.1(c) shall constitute a waiver of the conditions affect any termination rights set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company8.1.
Appears in 1 contract
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement its terms and provided that none of the events set forth in clause (iv) of Annex I A shall have occurred and be continuingsubject to no Law having been enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Purchaser shallCompany or any subsidiary or affiliate thereof having such effect, as promptly as reasonably practicable following the execution of this Agreement Sub shall (but in any event no later than seven business days after the execution and delivery of this Agreement), Parent shall cause Sub 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 as promptly as reasonably practicable, and in any event within twenty (20) Business Days, after the date hereof. Following such launch, each of Parent and Sub shall use its reasonable best efforts to purchase for cash all consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of the shares of Common Stock at the Offer Price. The obligations of the Purchaser Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer (and not withdrawn validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (ix) there being the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not withdrawn prior to the final expiration date of the Offer that number of (other than shares of Company Common Stock which, together with the shares of Common Stock then beneficially owned tendered by the Parent or the Purchaser, represents at least eighty percent (80%guaranteed delivery that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer), when added to any shares of Company Common Stock already owned by Parent or any of its controlled subsidiaries, if any, equals a majority of the then outstanding on a Fully-Diluted Basis (the “Minimum Condition”) shares of Company Common Stock and (iiy) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I A hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer conditions described in clauses (x) and (y) are collectively referred to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration DateTender Offer Conditions”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition which may not be amended or modify waived), to increase the price per share of Company Common Stock payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except that, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereofexcept as provided in Section 2.1(h)), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, (iv) decrease adds to the conditions to the Offer, decreases the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose additional conditions extends the Offer other than in a manner pursuant to and in accordance with the terms of this Section 2.1 or modifies or amends any condition to the Offer, (vi) amend any of the conditions set forth in Annex I Offer in any manner that broadens such conditions or is adverse to the holders of the shares of Company Common Stock.
(c) Subject to the terms and conditions thereof, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingshall remain open until midnight, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to New York City time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), any conditions to unless the period of time for which the Offer is open shall not have been satisfied extended pursuant to, and in accordance with, the provisions of this Section 2.1 or waived as required by applicable Laws or the interpretations of the SEC (in which event the term “Initial Expiration Date” shall mean the latest earliest time and date at which that the Offer, as so extended by the Purchaserextended, shall so may expire); provided that.
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the Purchaser shallunless this Agreement shall have been terminated in accordance with Section 9.1, upon the written request of the Company, (i) Sub shall extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer and (zii) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial initial Expiration Date or any subsequent date as of which the events set forth in subparagraph (c) of Annex I shall have occurred Offer is scheduled to expire, any Tender Offer Condition is not satisfied and be continuing and shall has not have been waived by the Purchaserwaived, then, in each such case, the Purchaser then Sub 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 ten (10) Business Days. Days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), in no event shall Sub be required to extend the Offer beyond the Termination Date; provided further, that in no event shall Sub be permitted to extend the Offer beyond the Termination Date without the prior written consent of the Company; and provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Section 9.1.
(e) In the event that this Agreement is terminated pursuant to Section 9.1, Sub shall (and Parent shall cause Sub to) promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer.
(f) Subject to the terms and conditions of this Agreement, Sub or Parent on Sub’s behalf shall accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn promptly following the expiration of the Offer; provided, however, that without the prior written consent of the Company, Sub shall not accept for payment or pay for any shares of Company Common Stock if, as a result, Sub would acquire less than the number of shares of Company Common Stock necessary to satisfy the Minimum Condition is satisfied and the Purchaser purchases Condition. The time at which Sub first accepts for payment the shares of Company Common Stock 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 shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Sub that such Taxes either have been paid or are not applicable. The Company shall register (and shall instruct its transfer agent to register) in the name of Sub the shares of Company Common Stock accepted for payment by Sub immediately after the Acceptance Time.
(g) As soon as reasonably practicable, and in any event within twenty (20) Business Days, after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S–4 to register the offer and sale of Parent Common Stock pursuant to the Offer, Offer and the Purchaser may, in its sole discretion, provide Merger (the “Registration Statement”). The Registration Statement will include a “subsequent offering period” in accordance with preliminary prospectus containing the information required under Rule 14d-11 promulgated 14d–4(b) under the Exchange Act (a the “Subsequent Offering PeriodPreliminary Prospectus”). In addition, the Purchaser may increase On the Offer Price Commencement Date, Parent and Acquisition Sub shall: (but not change any other condition i) cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which will contain or incorporate by reference the Preliminary Prospectus and forms of the related letter of transmittal and summary advertisement (such Tender Offer Statement on Schedule TO and all exhibits, amendments and supplements thereto being referred to collectively in this Agreement as the “Offer Documents”); and (ii) and extend cause the Offer Documents to be disseminated to holders of shares of Company Common Stock to the extent required by law applicable Law. Parent and Sub shall use reasonable best efforts to cause the Registration Statement and the Offer Documents to comply in all material respects with applicable Law. The Company and its counsel shall be given reasonable opportunity to review and comment on the Registration Statement and the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC. Parent and Sub shall promptly provide the Company and its counsel with a copy or a description of any comments received by Parent, Sub or their counsel from the SEC or its staff with respect to the Registration Statement or the Offer Documents. Each of Parent and Sub shall use reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Registration Statement, the Offer Documents or the Offer. To the extent required by applicable Law, each of Parent, Sub and the Company shall use reasonable best efforts to (1) correct promptly any information provided by it for use in the Registration Statement or the Offer Documents to the extent that it becomes aware that such information shall have become false or misleading in any material respect and (2) take all steps necessary to promptly cause the Registration Statement and the Offer Documents, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Sub all information concerning the Company and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1(g). Parent shall use reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as possible after its filing and to maintain its effectiveness for so long as shall be required for the issuance of Parent Common Stock pursuant to the Offer and the Merger. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) under the Securities Act.
(h) If, between the date of this Agreement and the Acceptance Time, any change in the number of issued or outstanding shares of Company Common Stock or Parent Common Stock shall occur as a result of a reclassification, recapitalization, share split (including a reverse share split), or combination, exchange or readjustment of shares, or any share dividend or share distribution (including any dividend or distribution of securities convertible into Company Common Stock or Parent Common Stock) with a record date during such increaseperiod, the Per Share Amount shall be equitably adjusted to reflect such change.
(i) No fraction of a share of Parent Common Stock will be issued in connection with the Offer, but in lieu thereof each case holder of Company Common Stock that would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) shall in its sole discretion and lieu of such fractional share, be paid an amount of cash (rounded to the nearest whole cent), without interest, equal to the consent product of: (i) such fraction, multiplied by (ii) the volume weighted average trading price of Parent Common Stock on Nasdaq for the Companyfive (5) consecutive trading days ending on the trading day immediately preceding the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (PARETEUM Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement Article VII and none of the events or conditions set forth in Annex I A (other than clause (e) of Annex A) shall have occurred and be continuingexisting and shall not have been waived in writing by Parent or Merger Sub (the conditions set forth in Annex A, the Purchaser "Tender Offer Conditions"), Merger Sub shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement)Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and the amended (together with its rules and regulations promulgated thereunder (regulations, the “"Exchange Act”")) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall meanOffer, as of any date, promptly as reasonably practicable after the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only in any event within 15 Business Days after the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”)this Agreement. The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without Without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof)Company, neither the Parent nor the Purchaser Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) Price or change the form of consideration payable in the Offer, (ivii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (viii) impose additional conditions to the Offer, (vi) Offer in addition to the Tender Offer Conditions or amend any of the conditions set forth condition in Annex I in any a manner that is adverse to the holders of the shares of Company Common Stock, (iv) waive or amend the Minimum Condition (v) extend the Expiration Date (as defined below) except as required or permitted by this Section 1.1, or (viivi) amend make any other term change to the terms of the Offer in a manner that is materially adverse to the holders of Company Common Stock; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any of the Tender Offer Conditions other than the Minimum Condition. The Company agrees that no shares of Company Common Stock. Notwithstanding Stock held by the foregoingCompany or any of its Subsidiaries will be tendered in the Offer except for Company Common Stock held in respect of the Company's Supplemental Retirement Savings Plan.
(b) Merger Sub shall file with the U.S. Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the Purchaser may (but "Offer Documents") and, subject to the Company's compliance with Section 1.2(c), cause the Offer Documents to be disseminated to the Company Stockholders in accordance with the applicable requirements of the Exchange Act. The Offer Documents shall comply in all material respects with the Exchange Act and, on the date first filed with the SEC and on the date first published, sent or given to the Company Stockholders and on the Acceptance Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be obligated to)stated therein or necessary in order to make the statements therein, without the consent in light of the circumstances under which they were made, not misleading, except that no covenant, agreement, representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company extend for inclusion or incorporation by reference in the Offer (x) beyond Documents. The Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Initial Expiration Date from time Offer Documents if and to timethe extent that it shall have become false or misleading in any material respect, for such period or periods of time as the Purchaser reasonably believes are and Parent further agrees to take all steps necessary to cause the conditions Offer Documents as so corrected to be satisfied iffiled with the SEC and disseminated to the Company Stockholders to the extent required by applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub 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 sufficiently in advance of any such document being filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good-faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(c) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the Initial end of the twentieth (20th) Business Day after the date that the Offer is commenced (the "Expiration Date"), any conditions to unless the period of time for which the Offer is open shall not have been satisfied extended pursuant to, and in accordance with, this Section 1.1(c) or waived (as may be required by applicable Law, in which event the term “Initial "Expiration Date” " shall mean the latest time and date at which as the Offer, as so extended by the Purchaser, shall so may expire); provided that, the Purchaser shall, upon the written request . If any of the Companyconditions of the Offer are not satisfied or waived on any Expiration Date, Merger Sub shall extend the Offer from time to time for one or more periods not of time up to exceed an aggregate of ten (10) 10 Business Days if, (or such longer period as of any expiration date, all the Company may agree in writing) per extension until such conditions of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are Offer have been satisfied or waived; provided that Merger Sub shall not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) be required to extend the Offer after 150 days following the date that the Offer is commenced. Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation, interpretation or position of the Securities and Exchange Commission (“SEC”) SEC or the its staff thereof applicable to the Offer. Merger Sub shall not extend the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, if all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock Offer are satisfied or earlier waived, waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. If all of the Tender Offer Conditions are satisfied but the number of shares of Company Common Stock that have been validly tendered (and not withdrawn) pursuant to withdrawn in the OfferOffer and accepted for payment, together with the any shares of Company Common Stock then owned by Parent and the PurchaserParent, represents is less than ninety percent (90%) % of the outstanding shares of Company Common Stock on a Fully-Diluted Basis; providedStock, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser Merger Sub may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to twenty (20) Business Days to acquire outstanding shares of Company Common Stock.
(d) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause it to, as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all additional shares of Company Common Stock validly tendered during such subsequent offering period.
(e) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of state, local or foreign tax Law.
Appears in 1 contract
The Offer. Subject to Section 4:
(a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement 4 hereof and provided that none of the events set forth in Annex I shall have the Offer Conditions has occurred or is continuing and be continuingin the case of any such occurrence or continuation, Acquisition Sub has not otherwise waived the Purchaser shalloccurrence or continuation of such event(s), as promptly as reasonably practicable following after the execution date of this Agreement (but and in any event no later than seven on or before the date that is five (5) business days after the execution and delivery of this Agreement)date hereof, Acquisition Sub shall commence (the Offer within the meaning of Rule 14d-2 the applicable rules and regulations of the Taiwan Financial Supervisory Commission (the “FSC”). The obligations of Acquisition Sub to commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) are subject to the satisfaction or waiver of each of the conditions set forth in Schedule C (such conditions, the “Offer Conditions”). The initial expiration date of the Offer shall be the 32nd day (which 32 day period shall also encompass 20 business days) following the commencement of the Offer (such date, the “Initial Expiration Date”, and such date and any subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, each an “Expiration Date”). In order for any stockholder of the Company to validly tender all or a portion of such stockholder’s Company Common Stock into the Offer such stockholder shall, concurrent with such tender, provide any member of the executive management of the Company (“Company Management”) with a proxy (“Tendered Proxies”) to (x) allow such tendered shares of Company Common Stock to be counted as present at the Company Stockholder Meeting or any annual or extraordinary general meeting in which the Company Stockholder Approval is sought, and (y) vote, or grant a consent or approval in respect of, such tendered shares of Company Common Stock, in favor of granting the Company Stockholder Approval and, if applicable, against any Takeover Proposal. Acquisition Sub shall not withdraw or rescind the Offer unless such withdrawal or rescission is permitted under this Agreement and the Securities and Exchange Law of Taiwan and the regulations promulgated thereunder.
(b) Subject to applicable Law, Acquisition Sub expressly reserves the right to waive any Offer Condition or amend or modify the terms of the Offer by concurrent written notice to the Company and to the Stockholders, provided that (x) no such proposed amendment or modification shall be effective for any purpose if it could reasonably be expected to impose additional obligations or liability on the Stockholders with respect to the Offer or the consummation of the Offer other than as contemplated hereby,(y) any proposed amendment or modification that would require the amendment of any term of this agreement shall not be effective without such amendment having been made pursuant to Section 6, and (z) without the prior written consent of the Company and the Stockholders, Acquisition Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the consideration payable in the Offer, (iii) waive the Minimum Condition (as defined in Schedule C) or (iv) change the form of consideration payable in the Offer. Subject to Section 4, (i) Acquisition Sub may extend the Offer for a period of up to 30 days only if and to the extent such extension is approved by the FSC, and (ii) Acquisition Sub may make such changes to the Offer as are required in order to comply with Regulation 14E of the U.S. Securities Exchange Act of 1934, as amended, . The parties acknowledge and the rules and regulations promulgated thereunder (the “Exchange Act”)) agree that all Subject Shares tendered to Acquisition Sub in the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on terms hereof shall be counted for purposes of determining whether or not the Minimum Condition has been satisfied.
(c) On or prior to the expiration date of commencement of the Offer, Acquisition Sub shall file with the FSC and submit to the Market Observation Post System of Taiwan (“MOPS”) a Tender Offer Prospectus in due and not withdrawn proper form that complies in all material respects with the applicable form relating to the Offer (together with any supplements, amendments and exhibits thereto, and all deliveries, mailings and notices required by applicable Law, the “Offer Documents”). Acquisition Sub shall promptly correct any information in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Acquisition Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be subject timely filed with the FSC and published in the MOPS and to (i) there being validly tendered be timely disseminated to holders of Shares, in each case as and not withdrawn to the extent required by applicable FSC, TSE and MOPS rules and regulations. Acquisition Sub shall give the Company, the Stockholders and their respective counsel a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements to the Offer Documents prior to their being filed with the final expiration FSC and published in the MOPS and disseminated to holders of Shares. Acquisition Sub further hereby agrees to promptly provide the Company, the Stockholders and their respective counsel in writing with any comments Acquisition Sub or its counsel may receive from the FSC or the MOPS with respect to the Offer that number Documents promptly after the receipt of shares of Common Stock whichsuch comments, together and shall promptly consult with and provide the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any dateCompany, the number Stockholders and their respective counsel a reasonable opportunity to review and comment on the response of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant Acquisition Sub to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable such comments prior to responding.
(excluding the shares of Common Stock issuable pursuant d) Subject solely to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser Acquisition Sub of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, Offer Conditions in accordance with Section 2(b) hereof, Acquisition Sub shall promptly and in event within seven (7) business days after the terms then scheduled Expiration Date if at that time all of the OfferOffer Conditions are satisfied (or waived by Acquisition Sub), consummate the Offer and accept for payment and pay for, and Parent shall cause for the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after for the expiration Offer Price. If Acquisition Sub is ordered by the FSC to amend the terms of the Offer (subject according to applicable Law, Acquisition Sub shall promptly do so, and shall re-submit the applicable provisions of Rule 14d-11 under Offer Documents and make a public announcement regarding such amendment, and the Exchange Act, to the extent applicable). The Offer Expiration Date shall be made by means re-started to count from the date Acquisition Sub re-submits the Offer Documents and makes such a public announcement.
(e) If, between the date of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition first time at which Acquisition Sub accepts for payment and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase makes payment for any shares of Company Common Stock tendered pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration DateAcceptance Time”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Company Common Stock on are changed into a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case different number or class of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach shares by reason of any material obligation share issuance, share split, division or subdivision of the Company) on Annex I and shares, share dividend, reverse share split, consolidation of its right to terminate the Agreement under Sections 8.1(b)(iii)shares, (c)(iv)reclassification, recapitalization or (c)(v). In additionother similar transaction, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase then the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Companyshall be adjusted accordingly.
Appears in 1 contract
Sources: Tender Agreement (Exar Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with pursuant to Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall10.1 hereof, as promptly as reasonably practicable practicable, but in no event later than fifteen Business Days following the public announcement of the terms of this Agreement (which public announcement shall occur no later than the first Business Day following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) a tender offer (as it may be amended from time to time as permitted by this Agreement, the Offer "OFFER") to purchase for cash all of the shares of Company Common Stock issued and outstanding at a price of U.S. $35.00 per share, net to the Offer Priceseller in cash (such price, or such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "OFFER PRICE"). The obligations obligation of the Purchaser to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or shall be subject only to the condition that there shall be validly tendered (other than by guaranteed delivery where actual delivery has not occurred) in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that withdrawn, a number of shares of Company Common Stock whichthat, together with the shares of Company Common Stock then beneficially owned by the Parent or the and/or Purchaser, represents at least eighty percent (80%) a majority of the shares of Company Common Stock outstanding on a Fully-Diluted Basis fully diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights to acquire, and securities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the time of determination) (the “Minimum Condition”"MINIMUM CONDITION") and (ii) to the satisfaction or waiver by Purchaser as permitted hereunder of the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer "OFFER TO PURCHASE") and the related letter of transmittal, each in form reasonably satisfactory to Purchase”) the Company, containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. I. Parent and Purchaser agree that the Offer to Purchase will provide a statement state at least in all the summary term sheet and in appropriate places therein in the Offer to the effect Purchase that the "Purchaser’s 's obligation to purchase shares of Company Common Stock pursuant to under the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)." Without limiting the foregoing, the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms effective upon Consummation of the Offer, except that, without the prior written consent holder of the such Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought will sell and assign to Purchaser all right, title and interest in the Offer, (v) impose additional conditions and to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders all of the shares of Company Common StockStock tendered (including, or (vii) amend but not limited to, such holder's right to any other term of the Offer in and all dividends and distributions, if any, with a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoingrecord date before, and a payment date after, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period scheduled or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
Sources: Merger Agreement (Cemex Sa De Cv)
The Offer. (a) Provided that this Agreement Subject to the terms and conditions herein, Merger Sub shall not have been terminated in accordance with Section 8.1 of this Agreement (and none of the events set forth in Annex I Parent shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer a cash tender offer to purchase for cash all of the issued and outstanding shares of the Company Common Stock at for $19.61 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the offer, the Per Share Amount and such offer, as it may be amended from time to time pursuant to the terms hereof, the Offer) no later than ten (10) Business Days after the date hereof. Subject to satisfaction or, if permitted hereunder, waiver of the Tender Offer Conditions (as defined below) and the terms and conditions hereof, Parent shall cause Merger Sub to irrevocably accept for purchase, and Merger Sub shall irrevocably accept for purchase, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer Priceas soon as practicable (and in any event not more than the fourth (4th) Business Day) following the Expiration Date (as defined below). The obligations Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Purchaser Company unless and until this Agreement is terminated in accordance with Section 8.1.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment purchase, purchase, and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer (and not withdrawn validly withdrawn) shall only be subject to the satisfaction or, if permitted hereunder, waiver pursuant to the terms hereof of (i) there being the condition (the Minimum Condition) that the number of shares of Company Common Stock validly tendered and not withdrawn prior to the final expiration Expiration Date (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer that number of pursuant to such procedures), when added to any shares of Company Common Stock which, together with the shares of Common Stock then beneficially already owned by the Parent or the Purchaserany of its subsidiaries, represents if any, shall be at least eighty percent (80%) a majority of the shares of Company Common Stock then outstanding on a Fullyfully-Diluted Basis diluted basis (assuming the “Minimum Condition”exercise of all options and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof, but excluding any Company Stock Options the holders of which have, as of the Acceptance Date, entered into the option cancellation agreements described in Section 3.3(a)) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Tender Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicableConditions). The Tender Offer shall be made by means Conditions are for the sole benefit of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a)Merger Sub, the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or modify waived), to increase the Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except that, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereofexcept as provided in Section 1.1(h)), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change changes the form of consideration payable in the Offer, (iv) decrease imposes conditions to the Offer in addition to the Tender Offer Conditions, decreases the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions subject to the Offer, (vi) amend any of reduces the conditions set forth in Annex I time period during which the Offer shall remain open, or modifies, amends or supplements the Offer or the Tender Offer Conditions in any manner adverse to the holders Company Stockholders.
(c) Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the later of (i) the shares of Common Stock, or twentieth (vii20th) amend any other term Business Day (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following commencement (determined in accordance with Rule 14d-2 under the Exchange Act) of the Offer in a manner that is materially adverse to and (ii) the holders of second (2nd) Business Day following the shares of Common Stock. Notwithstanding Solicitation Period End Date (the foregoing, the Purchaser may (but shall not be obligated toInitial Expiration Date), without the consent of the Company extend the Offer (x) beyond unless the Initial Expiration Date from time to timehas been extended pursuant to, for such period and in accordance with, the provisions of Section 1.1(d) or periods as required by Applicable Law or the interpretations of time as the Purchaser reasonably believes are necessary to cause Securities and Exchange Commission (the conditions to be satisfied if, at SEC) (the Initial Expiration Date, any conditions to or such the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest later time and date at on which the OfferInitial Expiration Date has been extended pursuant to, as so extended by the Purchaserand in accordance with, shall so expire); provided thatthis Agreement, the Purchaser shallExpiration Date).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, upon except the written request last sentence of the Companythis Section 1.1(d), unless this Agreement shall have been terminated in accordance with Section 8.1, (i) Merger Sub shall extend the Offer for one any period required by any Applicable Law, or any rule, regulation, interpretation or position of the SEC or its staff or the NYSE MKT in any such case that is applicable to the Offer, and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Merger Sub 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 ten (10) Business Days each, or for such longer period as the parties may agree, in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that if, at any Expiration Date the only Tender Offer Condition that is not satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than two subsequent extension periods not to exceed an aggregate after the first such Expiration Date of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretationeach, or position of for such longer period as the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v)parties may agree. In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser Merger Sub may, in its sole discretion, provide following the Acceptance Date, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In additionAct, the Purchaser may increase and the Offer Price Documents (but as defined below) may, in Merger Sub’s sole discretion, provide for such a right; provided, however, that Merger Sub shall not change commence any other condition “subsequent offering period” after the Acceptance Date if the Merger can be effected pursuant to Section 251(h) of the Offer) and DGCL. Notwithstanding the above, in no event shall Merger Sub be required to extend the Offer to beyond the extent required by law in connection with such increase, in each case in its sole discretion and Offer Outside Date or so extend the Offer without the consent of the Company.
(e) In the event that this Agreement is terminated pursuant to Section 8.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holder thereof.
(f) Subject to the terms and conditions of this Agreement and the Offer, Merger Sub (or Parent on Merger Sub’s behalf) shall irrevocably accept for purchase and pay for all shares of Company Common Stock validly tendered and not withdrawn as soon as practicable after the Expiration Date (the time and date of the acceptance for purchase, the Acceptance Date). If the Per Share Amount (or any portion thereof) is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock not represented by certificates (Book Entry Shares) or certificates that, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock (the Certificates) are registered, the amount of any stock transfer or other similar taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer shall be deducted from the Per Share Amount payable, unless evidence satisfactory to Merger Sub of the payment of such taxes or exemption therefrom is submitted. If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and upon providing an indemnity reasonably satisfactory to Parent and Merger Sub, Merger Sub will pay the Per Share Amount deliverable in respect of the shares of Company Common Stock that were evidenced by the lost, stolen or destroyed Certificate. No interest or dividends shall be paid or accrued on any portion of the Per Share Amount.
(g) As promptly as practicable on the date of commencement of the Offer, Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the Schedule TO) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the Offer to Purchase), form of the related letter of transmittal, summary advertisement and any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, the Offer to Purchase and such other documents, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the Offer Documents). Merger Sub shall cause the Offer Documents to be disseminated to Company Stockholders as and to the extent required by applicable federal securities laws. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Each of Parent, Merger Sub, 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 Merger Sub 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 Company Stockholders, in each case in all material respects as required by applicable federal securities laws. The Company shall promptly furnish to Merger Sub and Parent all information concerning the Company that is required or reasonably requested by Merger Sub or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 1.1(g). Parent and Merger Sub shall give the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. In addition, Parent and Merger Sub agree to (i) provide the Company and its counsel with any written comments Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, (ii) unless there has been a Change of Recommendation, provide a reasonably detailed description of any oral comments Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel a reasonable opportunity to review and comment on any written response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(h) If, between the date of this Agreement and the Acceptance Date, the outstanding shares of Company Common Stock 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, the Per Share Amount applicable to such shares of Company Common Stock shall be adjusted to the extent appropriate; provided, however, that this Section 1.1(h) shall not affect or supersede the provisions of Section 6.3(a).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 Article VII, then (i) not later than the first Business Day after execution of this Agreement Agreement, Parent and none the Company shall issue a public announcement of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in any no event no later than seven business days two Business Days after the execution and delivery date of this Agreement)such announcement, commence amend (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to provide for the purchase for cash of all of the outstanding shares of Company Common Stock at the Offer PricePrice Per Share subject to reduction only for any applicable federal withholding taxes. The obligations initial expiration date of the Purchaser Offer shall be the tenth Business Day from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms hereof. The Offer shall be made pursuant to a Supplemental Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "Minimum Shares") being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “"Minimum Condition”") and (ii) the satisfaction of the other conditions set forth in Annex I A hereto, any of which conditions may be waived by Merger Sub in its sole discretion. “Fully-Diluted Basis” shall meanThe Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, as of any dateneither Parent nor Merger Sub will (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of the shares of Company Common Stock issued and outstandingsought pursuant to the Offer or change the form of consideration payable in the Offer, together with (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer all conditions to the Offer have not been satisfied or waived, Merger Sub may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that may be have been validly tendered and not withdrawn represent more than 50% but less than 90% of the issued by and outstanding shares of the Company pursuant to warrantsCommon Stock; provided, optionshowever, rightsthat in no event shall the extensions permitted under the foregoing clause (y) exceed, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below in the Offer Priceaggregate, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement)10 Business Days. Subject Parent and Merger Sub will, subject to the terms and conditions of the Offer and this Agreement, and use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver by of all the Parent or conditions to the Purchaser of the Minimum Condition and the other conditions Offer set forth in Annex I hereto as A, and subject to the terms and conditions of any expiration date of the Offerthis Agreement, the Purchaser Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as permitted under applicable law, recognizing that the parties wish to close as expeditiously as possible after all Required Regulatory Approvals are obtained and following the expiration or termination of the Offer (subject all applicable waiting periods under antitrust or other competition laws of any applicable jurisdictions. Parent shall provide, or cause to the applicable provisions of Rule 14d-11 under the Exchange Actbe provided, to Merger Sub, on a timely basis, the extent applicable). The Offer shall be made by means of an offer funds necessary to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree any shares of Company Common Stock that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation Merger Sub becomes obligated to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of the shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Company) on Annex I and of its right to terminate the Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in subparagraph (c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). In addition, the Purchaser may increase the Offer Price (but not change any other condition to the Offer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the consent of the Company.
Appears in 1 contract
Sources: Merger Agreement (Koninklijke Philips Electronics Nv)