The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer. (b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII. (c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period. (d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 2 contracts
Sources: Merger Agreement (Omrix Biopharmaceuticals, Inc.), Merger Agreement (Johnson & Johnson)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article IX, Sub Newco shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day business day from and including the date of initial public announcement of this Agreement). Newco shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Newco. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Newco to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject such conditions and to the next sentence)) further condition that a number of Shares representing not less than a majority of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions Shares then outstanding on a fully diluted basis shall have been validly tendered and not withdrawn prior to the Offer or change the terms final expiration date of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “"Minimum Condition”) or "). Unless previously approved by the condition Company in clause (ii) or (iii) of Annex Awriting, and no change in the Offer may be made which (i) which decreases the Offer Price price per Share payable in the Offer, (ii) which changes the form of consideration to be paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A in a manner adverse to the holders of Shares or (v) which amends any other term of the Offer in a manner adverse to the holders of the Shares. Subject to Notwithstanding the terms and conditions of the Offer and this Agreementforegoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Newco may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding up to ten business days for each such extension beyond the then scheduled expiration date (10) Business Days for any extensionthe initial scheduled expiration date being 20 business days following commencement of the Offer), if on any then-at the then scheduled expiration date of the Offer any of the events set forth in Annex A conditions to Newco's obligation to accept for payment and pay for the Shares shall have occurred and not be continuingsatisfied or waived, until such time as such event conditions are satisfied or events waived (and, at the request of the Company, Newco shall, subject to Parent's right to terminate this Agreement pursuant to Article IX, extend the Offer for additional periods, unless the only conditions not satisfied or earlier waived on the then scheduled expiration date are one or more of the Minimum Condition and the conditions set forth in paragraphs (b) and (e) of Annex A hereto, provided that (x) if the only condition not satisfied is the Minimum Condition, the satisfaction or waiver of all other conditions shall no longer existhave been publicly disclosed at least five business days before termination of the Offer and (y) if paragraph (b) of Annex A hereto has not been satisfied and the failure to so satisfy can be remedied, and the Offer shall not be terminated unless the failure is not remedied within 30 calendar days after Parent has furnished the Company written notice of such failure), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at Offer and (iii) extend the Initial Expiration Time Offer for an aggregate period of not more than 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or subsequent expiration time related to an extension (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected without a meeting of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived Company's shareholders in accordance with Section 180.1104 of the Wisconsin Business Corporation Law (the "BCL"). Subject to the terms and conditions of the Offer and this Agreement), then, if requested by the Company, Sub Newco shall, and Parent shall cause Sub Newco to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts pay for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger withdrawn pursuant to Section 2.10 (assuming the exercise of Offer that Newco becomes obligated to purchase pursuant to the Top-Up Option in full), then, upon Offer as soon as practicable after the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Newco shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any supplement or amendments and supplements thereto, the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Lawslaws. Parent and SubParent, on the one hand, Newco and the Company, on the other hand, Company each agree promptly to promptly correct any information provided by it them for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub and Newco further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The To the extent practicable, the Company and its counsel shall be given a reasonable an opportunity to review and comment on upon the Offer Documents before they are filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 2 contracts
Sources: Merger Agreement (Taqu Inc), Merger Agreement (Giddings & Lewis Inc /Wi/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 hereof and none of the events set forth in Annex I shall have occurred and be existing, Sub as promptly as practicable (but in no event later than five (5) business days after the public announcement of the execution of this Agreement), the Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as practicable after at the date hereof Offer Price and, subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, 9,158,155 Shares (but not later than including Shares owned by Parent, the fifth Purchaser or any affiliates thereof) (5ththe "Minimum Condition") Business Day from and including to the date of initial public announcement of this Agreement)other conditions set forth in Annex I hereto, shall use its best efforts to consummate the Offer in accordance with its terms. The obligation obligations of Sub the Purchaser to commence accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), Minimum Condition and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves I hereto. The Offer shall be made by means of an offer to purchase (the right "Offer to waive any conditions Purchase") subject to the Offer or change Minimum Condition and the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes other conditions to the Offer in addition to those set forth in Annex A I hereto or which otherwise modifies and reflecting, where appropriate, the conditions other terms set forth in such Annex A this Agreement. The Purchaser shall not amend or waive the Minimum Condition (vother than, at Purchaser's option, to lower the Minimum Condition to a majority of the issued and outstanding Common Stock on a fully diluted basis) amends and shall not decrease, or change the form of, the Offer Price or decrease the number of Shares sought, or amend any other term condition of the Offer in a any manner adverse to the holders of Sharesthe Shares or impose any condition to the consummation of the Offer beyond the Minimum Condition and the conditions set forth in Annex I hereto without the written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer, which shall be twenty-one (21) business days after the date the Offer is commenced, 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 and; provided further, however, that if on the initial scheduled expiration date of the Offer any conditions to the Offer that are reasonably capable of being satisfied within ten (10) business days, including the Minimum Condition, will not have been satisfied or waived, the Purchaser shall extend the expiration date for a minimum of ten (10) business days. In no event shall the Purchaser be obligated to extend the Offer beyond June 30, 1999. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) If more than 9,158,155 Shares are validly tendered prior to the expiration date, as may be extended pursuant to Section 1.1(a), and not withdrawn, the Purchaser will, upon the terms and subject to the conditions of the Offer, accept for payment (and thereby purchase) the Shares purchased in the Offer on a pro rata basis, with adjustments to avoid purchases of fractional shares of Common Stock, based on the number of Shares validly tendered prior to the expiration date and not withdrawn by each tendering stockholder. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent the Purchaser reserves the right (but shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”be obligated) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for payment more than 9,158,155 Shares pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall include the offer "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of applicable federal securities laws and, on the Exchange Actdate filed with the SEC and on the date first published or sent to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information furnished by the Company expressly for inclusion in the Offer Documents. The information supplied by the Company expressly for inclusion in the Offer Documents and by Parent or the Purchaser expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(d) Each of Parent and Sub shall the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. Each of Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub respect, and the Purchaser further agrees to will take all steps necessary to cause the Schedule 14D-1 or the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a the reasonable opportunity to review and comment on the Offer Documents initial Schedule 14D-1 before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, Parent and Sub agree to the Purchaser will provide the Company and its counsel with any comments or other communications, whether written or oral, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 2 contracts
Sources: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date 9.01 hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(aa) or through (v)(bh) of Annex ANNEX A hereto shall have occurred or be continuing, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and be continuing regulations thereunder, the "EXCHANGE ACT")) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than seven (and not waived by Parent or Sub 7) business days after the initial public announcement of the execution of this Agreement; PROVIDED; HOWEVER, in their sole discretion)the event the Company shall have failed to provide mailing labels to Purchaser pursuant to Section 2.02 hereof within five (5) business days after the initial public announcement of the execution of this Agreement, and Purchaser shall commence the Offer within two (2) business days of receipt of such labels.
(b) The obligation of Sub Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition (the "MINIMUM CONDITION") that at least the number of Shares that, when added to Shares, if any, already owned by Parent, shall constitute (A) a majority of the then outstanding Common Shares (including, without limitation, all Common Shares issuable upon the conversion of the Series A Shares or upon the exercise or conversion of any options, warrants, rights or other convertible securities), or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the satisfaction Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, and (B) a majority of the then outstanding Series A Shares, or waiver by Parent or Sub in their sole discretion (but subject such higher percentage of such class of securities as may be required to approve the Merger pursuant to the next sentence)) Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, shall have been validly tendered and not withdrawn prior to the expiration of the Offer, and (y) the satisfaction of each of the other conditions set forth in such Annex A. Sub ANNEX A hereto.
(c) Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change Per Share Common Amount and the Per Share Preferred Amount, and to make any other changes in the terms and conditions of the Offer except thatOffer; PROVIDED, without the prior written consent of the CompanyHOWEVER, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and that no change in the Offer may be made which (i) decreases the Offer Price payable in Per Share Common Amount or the OfferPer Share Preferred Amount, (ii) changes increases the form of consideration to be paid in Per Share Preferred Amount such that the OfferPer Share Preferred Amount is greater than the amount obtained by multiplying the Per Share Common Amount by two (2) or the Per Share Common Amount such that the Per Share Common Amount is no greater than the amount obtained by dividing the Per Share Preferred Amount by two (2), (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) changes the form of consideration to be paid in the Offer, (v) extends the Offer except as provided in this Section 2.01, (vi) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A hereto or which otherwise modifies amends the conditions set forth in ANNEX A to broaden the scope of such Annex A conditions, (vii) reduces or waives the Minimum Condition without the prior approval of the Company, or (vviii) amends any other term terms of the Offer in a manner adverse to the holders of the Shares. Subject Notwithstanding the foregoing, in addition to the terms and conditions of the Offer and this Agreementits rights under paragraph (e) below, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, (iA) extend the Offer on one or for a period of not more occasions for any period not exceeding ten than thirty (1030) Business Days for any extension, if on any then-business days beyond the scheduled expiration date date, which shall be twenty (20) business days following the commencement of the Offer Offer, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A conditions to Purchaser's obligation to accept Shares for payment, shall have occurred and not be continuingsatisfied or waived, until such time as such event or events shall no longer exist, and (iiB) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC"), or the staff thereof thereof, applicable to the Offer. IfIn addition, at if, on the Initial Expiration Time or subsequent initial scheduled expiration time related to an extension date of the Offer, including an extension pursuant the sole condition remaining unsatisfied is the failure of the waiting period, if any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), to this sentencehave expired or been terminated, then Purchaser may extend the Offer from time to time until the earlier to occur of (i) December 31, 2002 and (ii) the fifth (5th) business day following the public announcement of the expiration or termination of the applicable waiting period under the HSR Act. Parent and Purchaser agree that, if any one or more of the conditions to the obligation Offer set forth on ANNEX A are not satisfied and none of Sub the events set forth in paragraphs (b), (f) or (g) of ANNEX A that would permit Purchaser not to accept for payment, purchase and pay for Shares tendered pursuant to the Offer for payment has not been satisfied (or waived in accordance with this Agreement)occurred, then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through PROVIDED that such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex ANNEX A are satisfied) request one or more extensions reasonably capable of the Offer pursuant to this sentence for up to being satisfied within thirty (30) days in Parent and Purchaser's sole judgment, Purchaser shall, at the aggregate). Nothing request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied within such thirty (30) day period in this Section 2.1(b) Parent and Purchaser's sole judgment; PROVIDED, HOWEVER, in no event shall affect or impair any termination rights under ARTICLE VIIIPurchaser be required to extend the Offer beyond December 31, 2002.
(cd) If all The Per Share Common Amount and the Per Share Preferred Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and subject to the conditions of the conditions to the Offer are satisfied or waived, but the number of Offer. Purchaser shall pay for all Shares validly tendered and not withdrawnwithdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If the payment equal to the Per Share Common Amount or Per Share Preferred Amount or both, together with as the Sharescase may be, if any, held by Parent and Sub or any in cash is to be made to a person other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of person in whose name the surrendered certificate formerly evidencing Shares required to consummate is registered on the Merger pursuant to Section 2.10 (assuming the exercise stock transfer books of the Top-Up Option Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in full), then, upon proper form for transfer and that the applicable expiration time person requesting such payment shall have paid all transfer and other taxes required by reason of the Offerpayment of the Per Share Common Amount or Per Share Preferred Amount or both, Sub as the case may be, to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(and if the Company so requests Sub shalle) Purchaser may, and Parent shall cause Sub to) in its sole discretion, provide a "subsequent offering period (a “Subsequent Offering Period”) in accordance with period" as contemplated by Rule 14d-11 under the Exchange Act and, if applicable and to following its acceptance for payment of Shares in the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodOffer.
(df) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub 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, which . The Schedule TO shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule TO, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubParent, on the one hand, Purchaser and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are filed prior to the filing thereof with the SEC or disseminated dissemination to holders of Shares, and . Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel with any comments Parent or communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The and shall provide the Company and its counsel shall be given with a reasonable opportunity to review any responses participate in the response of Parent or Purchaser to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 2 contracts
Sources: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8 and that the Company has complied with its obligations under Section 8.11.1(f) and Section 1.2, Sub as promptly as practicable after the date of this Agreement but in no event more than ten (10) business days after the date of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver by Purchaser of the conditions set forth in Annex I (collectively, the “Offer Conditions”) as of the Expiration Date in accordance with Section 1.1(c), Purchaser shall promptly on or after the Expiration Date accept for payment (such time of acceptance for payment, the “Offer Acceptance Time”) and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer. Parent shall provide or cause to be provided to Purchaser, on a timely basis, the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer. The Company shall register (and shall instruct its transfer agent to register) the transfer of the Shares accepted for payment by Purchaser effective as promptly as practicable after the date hereof Offer Acceptance Time.
(but not later than the fifth (5thc) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only made by means of an offer to purchase (the condition that none of “Offer to Purchase”) in accordance with the events terms set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)this Agreement, the Minimum Condition and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the other Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes in the terms and conditions to of the Offer or change not inconsistent with the terms of the Offer except thatthis Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Sub may Purchaser shall not waive the condition in clause (iA) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in decrease the Offer may be made which Price, (iB) decreases change the Offer Price form of consideration payable in the Offer, (iiC) changes decrease the form maximum number of consideration Shares sought to be paid purchased in the Offer, (iiiD) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes impose conditions to the Offer in addition to those set forth in Annex A hereto the Offer Conditions, (E) amend, modify or which otherwise modifies the conditions set forth in such Annex A or (v) amends supplement any other term of the Offer Conditions in a manner adverse that adversely affects holders of Shares generally, (F) amend, modify or waive the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be terminated prior to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Expiration Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or unless this Agreement is terminated in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the OfferArticle 8.
(bd) Unless extended as provided pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after business days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (determined the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to Rule 14d-1(g)(3and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) under Subject to the Exchange Act). Sub mayparties’ respective rights to terminate the Agreement pursuant to Article 8, without Purchaser shall, and Parent shall cause Purchaser to, extend the consent of the Company, Offer from time to time as follows: (i) if on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Purchaser if permitted hereunder, then Purchaser shall extend the Offer on for one (1) or more occasions for any period not exceeding in consecutive increments of ten (10) Business Days for business days each (or such shorter period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Purchaser to waive any extensionOffer Condition, if on any then-scheduled expiration date of other than the Minimum Condition); provided, however, that Purchaser shall not be required to extend the Offer any of and the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, Expiration Date to a date later than the End Date; and (ii) Purchaser shall extend the Offer for any the minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC or its staff or the staff thereof applicable NASDAQ Stock Market (“NASDAQ”) or its staff; provided, however, that Purchaser shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer. IfOffer Acceptance Time, at and such adjustment to the Initial Expiration Time or subsequent expiration time related Offer Price shall provide to an extension the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) In the event that this Agreement is terminated pursuant to the terms hereof, Purchaser shall (and Parent shall cause Purchaser to) as promptly as practicable irrevocably and unconditionally terminate the Offer, including an extension pursuant to this sentence, shall not acquire any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived and shall cause any depository acting on behalf of Purchaser to return, in accordance with this Agreement)applicable Law, then, if requested by all tendered Shares to the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIregistered holders thereof.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(dh) As soon promptly as practicable on the date of commencement of the Offer is commenced(within the meaning of Rule 14d-2 under the Exchange Act), Parent and Sub Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall include the offer “Schedule TO”) that will contain or incorporate by reference the Offer to purchase, Purchase and form of the related letter of transmittal and form (ii) cause the Offer to Purchase and related documents to be disseminated to holders of notice of guaranteed delivery Shares, in each case as and all other ancillary Offer documents (collectivelyto the extent required by applicable Law. Parent and Purchaser agree that they shall cause the Schedule TO, together with all documents included therein pursuant to which the Offer will be made (collectively and with any supplements or amendments and supplements thereto, the “Offer Documents”). The Offer Documents will ) filed by either Parent or Purchaser with the SEC to comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, Act and the Companyrules and regulations thereunder and other applicable Law. Each of Parent, on Purchaser and the other hand, agree Company agrees to promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub respect, and Parent further agrees to take use all steps necessary reasonable efforts to promptly cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities LawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Purchaser or Parent’s legal counsel any information concerning the Acquired Corporations and the Company’s stockholders that is required in connection with any action contemplated by this Section 1.1(h). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed prior to the filing thereof with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel with any comments or communications, whether written or oral, (including a summary of any oral comments) that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments. Each of Parent and Purchaser shall respond promptly to any comments of the SEC or communications. The Company and its counsel shall be given a reasonable opportunity staff with respect to review any responses to such comments the Offer Documents or communicationsthe Offer.
(i) For purposes of this Agreement, and Parent and Sub shall give due consideration the Offer, unless otherwise mutually agreed to all reasonable additions, deletions or changes suggested thereto by the Company and its counselPurchaser, any Shares subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the Shares underlying such notices of guaranteed delivery are delivered to Purchaser or to an agent of Purchaser.
(j) Without limiting the generality of Section 9.11, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement. Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective controlled Affiliates shall, tender any Shares held by them into the Offer.
(k) Notwithstanding anything to the contrary herein, Parent and Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent to deduct and withhold) from the consideration otherwise payable pursuant to the Offer such amounts as it is required by any Law to deduct and withhold with respect to Taxes and any amounts so withheld shall be promptly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and paid to the appropriate Governmental Body in accordance with all applicable Law, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated and subject to the terms hereof, as promptly as practicable, but in accordance with Section 8.1no event later than five (5) Business Days after the public announcement of the execution hereof by the parties, Sub Parent shall commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) ,the Offer for any and all of the Exchange Act) Shares, at the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Price. The obligation of Sub Parent to commence the Offer accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that none at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options) be validly tendered (the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion"Minimum Condition"), and (ii) the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub Parent expressly reserves the right to waive any conditions to increase the Offer Price or change to make any other changes in the terms and conditions of the Offer except (provided that, without unless previously approved by the prior written consent of the CompanyCompany in writing, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferPrice, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies A, (v) amends the conditions set forth in such Annex A or to broaden the scope of such conditions, (vvi) amends any other term of the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b)), or (viii) amends the Minimum Condition. Subject It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and may be waived by Parent, in whole or in part at any time and from time to time, in its sole discretion other than the terms and conditions Minimum Condition, as to which prior written Company approval is required. The failure by Parent at any time to exercise any of the Offer foregoing rights shall not be deemed a waiver of any such right and this Agreement, Sub shall, each such right shall be deemed an ongoing right which may be asserted at any time and Parent shall cause Sub to, accept for payment, purchase and pay for all from time to time. The Company agrees that no Shares validly held by the Company or any of its Subsidiaries (as defined in Section 9.2) will be tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this AgreementSubject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of date the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub mayis commenced; provided, 7 however, that without the consent of the Company's Board of Directors, Parent may (i) from time to time extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionOffer, if on any then-at the scheduled expiration date of the Offer any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer exist, and waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time ; or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, iii) extend the Offer through such time as for any reason on one or more occasions for an aggregate period of not more than twenty (20) Business Days beyond the Company may specify, which time shall latest expiration date that would otherwise be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in permitted under clause (v)(bi) or (v)(cii) of Annex A this sentence if on such expiration date there shall not have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions tendered at least 90% of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate)outstanding Shares. Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If Parent agrees that if all of the conditions to the Offer set forth on Annex A are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied prior to October 31, 1997, Parent shall extend the Offer from time to time until such conditions are satisfied or waived, but provided that Parent shall not be required to extend the number Offer beyond October 31, 1997. Subject to the terms and conditions of the Offer and this Agreement, Parent shall accept for payment, and pay for, all Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger withdrawn pursuant to Section 2.10 (assuming the exercise of Offer that Parent becomes obligated to accept for payment and pay for pursuant to the Top-Up Option in full)Offer, then, upon as promptly as practicable after the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(dc) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall include contain as an exhibit or incorporate by reference the offer Offer to purchase, form Purchase (or portions thereof) and forms of the related letter of transmittal and form of notice of guaranteed delivery summary advertisement. Parent and Merger Sub agree that the Schedule 14D-1, the Offer to Purchase and all other ancillary Offer documents amendments or supplements thereto (collectively, which together with any amendments and supplements thereto, constitute the “"Offer Documents”). The Offer Documents will ") shall comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable provisions of the Exchange ActLaws (as defined in Section 5.1(i)). Parent and Merger Sub further agree that the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall cause not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders make the statements therein, in light of Shares as required by applicable federal securities Lawsthe circumstances under which they were made, not misleading. Parent and SubEach of Parent, on the one hand, Merger Sub and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and Parent and Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares the Company's stockholders, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed prior to the filing thereof with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree agrees to provide the Company and its counsel in writing with any comments Parent or communications, whether written or oral, that Parent, Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.1Annex I hereto, Sub as promptly as practicable and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act1▇▇▇ ▇▇▇) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from Offer. Merger Subsidiary’s obligation to accept for payment and including the date of initial public announcement of this Agreement). The obligation of Sub to commence pay for any Company Shares tendered in the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses Offer, immediately prior to the scheduled expiration of the Offer (v)(aas it may be extended hereunder) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent or Sub in their sole discretion)Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except thatOffer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer Condition may not be made which (i) decreases the Offer Price payable in the Offerwaived, (ii) no change may be made that changes the form of consideration to be paid in pursuant to the Offer, (iii) reduces decreases the maximum Offer Price or the number of Company Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I, or which otherwise modifies amends the conditions set forth in such Annex A or (v) amends I in any other term of the Offer in a manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to unless the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or is extended in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) 21 Business Days after the commencement of the Offer (determined pursuant to Rule for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act)1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Sub mayUnless this Agreement or the Offer is terminated in accordance with its terms, without the consent of the Company, (i) Merger Subsidiary shall extend the Offer on one from time to time (1) if, at the scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, the Minimum Condition or any of the events conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex A I shall not have occurred and be continuingbeen satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as such event or events shall no longer existconditions and (y) the End Date, and (ii2) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Merger Subsidiary may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act and, if applicable and 1934 Act. Subject to the extent permitted under foregoing, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Rule 14d-11Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, thereafter extend such subsequent offering periodsubject to reduction for any applicable withholding Taxes.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the offer Offer to purchase, form Purchase and forms of the related letter of transmittal and form summary advertisement, if any, in respect of notice of guaranteed delivery and all other ancillary the Offer documents (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent , and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable federal securities Lawslaws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Parent and SubEach of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Company Shares, in each case as and to the extent required by applicable U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Merger Subsidiary shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or other communications. The Company , and its counsel shall be given (B) a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration to all reasonable additionsbe given), deletions including by participating with Parent and Merger Subsidiary or changes suggested thereto by their counsel in any discussions or meetings with the Company and its counselSEC.
Appears in 1 contract
Sources: Merger Agreement (Packeteer Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 and none of the events set forth in paragraph (b) of Annex I shall exist or have occurred and be continuing, Sub as promptly as practicable (and in any event within five business days) after the date of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2(a14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer to purchase for cash all outstanding Shares at the Offer Price.
(b) Promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable law to accept for payment Shares validly tendered and not withdrawn pursuant to the Offer, (ii) the earliest date as of which each of the Exchange Actconditions and requirements set forth in Annex I (the “Offer Conditions”) has been satisfied or waived by Parent or Purchaser, and (iii) the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer as promptly as practicable after in accordance with its terms and accept for payment and pay for all Shares (without interest) validly tendered and not withdrawn pursuant to the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the satisfaction (satisfaction, or waiver by Parent or Sub in their sole discretion Purchaser, of each of the Offer Conditions (but and shall not be subject to any other conditions).
(c) The Offer shall be made by means of an offer to purchase (the next sentence)“Offer to Purchase”) of that contains, among other things, the conditions terms set forth in such this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex A. Sub I. Parent and Purchaser expressly reserves reserve the right to (x) increase the Offer Price and (y) waive any conditions Offer Conditions and make any other changes to the Offer or change the terms and conditions of the Offer except thatOffer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Sub may not waive the condition in clause neither Parent nor Purchaser shall (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in decrease the Offer may be made which (i) decreases the Offer Price payable in the OfferPrice, (ii) changes change the form of consideration to be paid payable in the Offer, (iii) reduces decrease the maximum number of Shares sought to be purchased in the Offer, (iv) impose conditions or requirements to the Offer that are different than or in addition to the minimum number of Shares contemplated by Offer Conditions, (v) change or waive the Minimum Condition, (ivvi) imposes conditions amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, the holders of Shares, or (vii) extend or otherwise change the expiration date of the Offer other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 business days following the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on or prior to any then scheduled Expiration Date all of the Offer Conditions (including the Minimum Condition) shall not have been satisfied or waived by Parent or Purchaser (if permitted hereunder), then Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for one or more successive periods of not more than 10 business days each in order to permit the satisfaction of such conditions, each until the earlier of (x) the termination of this Agreement pursuant to Section 8.1 and (y) the date that is 90 days after commencement of the Offer (the “Outside Date”); and
(ii) Purchaser shall extend the Offer for any period or periods required by any then applicable law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff or NASDAQ or its staff.
(f) If necessary to obtain sufficient Shares to reach the Short-Form Threshold, Purchaser may, in its sole discretion, provide for a subsequent offering period in accordance with Rule 14d-11 promulgated under the Exchange Act. Notwithstanding the foregoing, in the event that more than 80% of the then outstanding Shares have been validly tendered and not withdrawn pursuant to the Offer following the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) provide for a subsequent offering period in addition accordance with Rule 14d-11 promulgated under the Exchange Act of at least 10 business days immediately following the Expiration Date; provided, that Purchaser shall not be required to those set forth make available such a subsequent offering period in Annex A hereto or which otherwise modifies the conditions set forth event that, prior to the commencement of such subsequent offering period, Parent, Purchaser and their respective related organizations (as defined in such Annex A or (v) amends any other term Section 302A.011, Subd. 25, of the Offer MBCA), in a manner adverse to the holders aggregate, own more than 90% of the outstanding Shares. Subject to the terms and conditions of this Agreement and the Offer and this AgreementOffer, Sub shall, Purchaser shall (and Parent shall cause Sub Purchaser to, ) accept for payment, purchase and pay for for, all Shares that are validly tendered and not withdrawn pursuant to the Offer as soon as practicable during such subsequent offering period promptly after any such Shares are tendered during such subsequent offering period. The Offer Documents will provide for the expiration possibility of a subsequent offering period in a manner consistent with the terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Offer (the date of acceptance for paymentCompany, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (except in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following event that this Agreement is terminated pursuant to Section 8.1. In the valid tender thereof without interestevent that this Agreement is terminated pursuant to Section 8.1, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) Purchaser shall (and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase Purchaser to) promptly (and pay for in any event within 24 hours of such termination), irrevocably and all unconditionally terminate the Offer and shall not acquire any Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(bh) Unless extended as provided in this Agreement, the Offer shall expire on On the date (the “Initial Expiration Time”) that is twenty (20) Business Days after of the commencement of the Offer (determined pursuant to within the meaning of Rule 14d-1(g)(3) 14d-2 promulgated under the Exchange Act). Sub may, without the consent of the Company, Purchaser shall (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub Purchaser to) file with the SEC, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the TopRegulation M-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 A under the Exchange Act and(“Regulation M-A”), if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include include, as exhibits, the offer Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawsthe Exchange Act. Parent and SubEach of Parent, on the one hand, Purchaser and the Company, on the other hand, agree Company agrees to correct promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawlaw. Sub Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Purchaser agree to use all reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents. In addition, Parent and Sub agree to Purchaser shall provide the Company and its counsel with copies of any comments or communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If Purchaser terminates or withdraws the Offer, or this Agreement is terminated prior to the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof.
(i) Purchaser shall (and Parent shall cause Purchaser to) timely file with the Commissioner of Commerce of the State of Minnesota a registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate the registration statement as required by Chapter 80B of the Minnesota Statutes. The Company and Purchaser shall (and Parent shall cause Purchaser to) promptly file with the Commissioner of Commerce of the State of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes.
(j) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination or other like change with respect to Common Stock occurring on or after the date of this Agreement and prior to the Acceptance Time, if any.
Appears in 1 contract
Sources: Merger Agreement (Buca Inc /Mn)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Parent shall cause Sub shall to, and Sub shall, as soon as practicable after the date hereof, but in any event within five (5) business days after the public announcement of the execution hereof, commence (within the meaning of Rule 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), a tender offer (the "Offer") for all of the Exchange Actissued and outstanding shares of common stock, par value $0.01 per share, of Company (the "Company Common Stock") at a price of $6.25 per share (the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement"Per Share Price"). The obligation of Sub to commence the Offer shall be subject only , net to the condition that none of the events set forth sellers in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)cash, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. I hereto and incorporated herein by reference (the "Offer Conditions") including the Minimum Condition (as defined therein).
(b) The Offer shall be made by means of an offer to purchase which shall contain as conditions only the Offer Conditions and, subject to the next succeeding sentence, shall otherwise contain, and be consistent with, the terms and conditions of the Offer as described in this Agreement. Each of Sub and Parent expressly reserves the right right, in its sole discretion, to waive any conditions such condition and make any other changes to the Offer or change the terms of the Offer except Offer; provided, that, without the prior written consent of the Company, neither Parent nor Sub may not shall amend or waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces decrease the maximum Per Share Price or the number of Shares to be purchased in the Offer or the minimum number shares of Shares contemplated by the Minimum ConditionCompany Common Stock sought, (iv) imposes impose additional conditions to the Offer in addition to those set forth in Annex A hereto Offer, or which otherwise modifies the conditions set forth in such Annex A or (v) amends amend any other term condition of the Offer in a any manner adverse to the holders of Sharesthe shares of Company Common Stock. Subject The Per Share Price shall be net to the terms and conditions of the Offer and this Agreementsellers in cash, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay reduction only for any and all Shares that Sub becomes obligated to accept for paymentapplicable withholding taxes. Notwithstanding the foregoing, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding up to ten (10) Business Days business days for any extensioneach such extension beyond the then-scheduled expiration date (the initial scheduled expiration date being twenty (20) business days following commencement of the Offer), if on any at the then-scheduled expiration date of the Offer any of the events set forth in Annex A conditions to Sub's obligation to accept for payment and pay for the shares of Company Common Stock shall have occurred and not be continuingsatisfied or waived, but not later than February 28, 2000, until such time as such event conditions are satisfied or events shall no longer existwaived, and and, at the request of Company, Sub shall, subject to Parent's right to terminate this Agreement pursuant to Article VIII, extend the Offer for additional periods ending up to, but not later than, February 28, 2000, if the only condition not satisfied or earlier waived on the then-scheduled expiration date is the HSR Approval Condition (as defined in Annex I hereto), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iii) provided that Parent and Sub irrevocably waive the conditions, other than the Minimum Condition, to the Offer set forth in Annex I and agree not to assert such conditions as a basis for not consummating the Offer, extend the Offer for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if the Minimum Condition shall have been satisfied but there shall not have been tendered sufficient shares of Company Common Stock so that the Merger could be effected without a vote of Company's stockholders in accordance with Section 253 of the Delaware General Corporation Law (the "DGCL"). If, at Subject to the Initial Expiration Time or subsequent expiration time related to an extension terms of the Offer, including an extension pursuant to this sentencethe Offer Conditions, any of the conditions to the obligation of Sub to shall accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement)all shares of Company Common Stock duly tendered, then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with at the Sharesearliest time at which it is permitted to do so under applicable law; provided, if anythat, held by Parent and as set forth above, Sub shall have the right, in its sole discretion, to extend the Offer for up to ten (10) business days notwithstanding the prior satisfaction or any other direct or indirect wholly owned Subsidiary waiver of Parent (any such wholly owned Subsidiaries the Offer Conditions, in order to attempt to permit the tender of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number sufficient shares of Shares required Company Common Stock to consummate effect the Merger pursuant to Section 2.10 (assuming the exercise 253 of the Top-Up Option in full)DGCL. It is agreed that the Offer Conditions other than the Minimum Condition are solely for the benefit of Parent and Sub and that all Offer Conditions may be asserted by Parent or Sub, thenunless irrevocably waived, upon the applicable expiration time regardless of the Offer, circumstances resulting in a condition not being satisfied (except for any action or inaction by Sub may (and if the Company so requests Sub shall, and or Parent shall cause Sub toconstituting a breach of this Agreement) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and except with respect to the extent permitted under such Rule 14d-11Minimum Condition, thereafter extend such subsequent offering periodmay be waived by Parent or Sub, in whole or in part at any time and from time to time, in their sole discretion.
(dc) As soon as practicable on the date of commencement of the Offer is commenced(within the meaning of Rule 14d-2(a) under the Exchange Act), Parent and Sub Sub, with the cooperation of, and subject to the prior review thereof by, Company, shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall include Offer that will contain or will incorporate by reference the offer to purchase, form Offer (or portions thereof) and forms of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectivelywhich documents, together with any supplements or amendments and supplements thereto, and together with the “Schedule 14D-1, are referred to herein collectively as the "Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions Each of the Exchange Act. Parent Parent, Sub and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree with respect to promptly correct any information provided supplied by it for use in the Offer Documents, agrees promptly to correct the Offer Documents if it and to the extent that any of them shall have become false or misleading in any material respect or as otherwise required by applicable Law. any event occurs which should be set forth in an amendment or supplement to the Offer Documents, and Sub further agrees to shall take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and such Offer Documents as so corrected to be disseminated to holders of Shares shares of Company Common Stock, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.reasonable
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex ANNEX A hereto shall have occurred and or be continuing (and not waived by Parent or existing, Merger Sub shall commence the Offer as promptly as reasonably practicable after the date hereof, but in their sole discretion), and no event later than five business days after the initial public announcement of Merger Sub's intention to commence the Offer. The obligation of Merger Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall only be subject only to (i) the condition (the "MINIMUM CONDITION") that at least the number of Shares that when added to the Shares already owned by Parent shall constitute a majority of the then outstanding Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex ANNEX A. Merger Sub expressly reserves the right to waive any conditions such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or change and to make any other changes in the terms and conditions of the Offer except thatOffer; PROVIDED, without HOWEVER, that unless Parent and Merger Sub shall have obtained the prior written consent approval of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change may be made in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer Offer, (iv) changes or the minimum number of Shares contemplated by waives the Minimum Condition, or (ivv) modifies the conditions to the Offer set forth in ANNEX A or imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies ANNEX A. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesOffer. Subject to the terms and conditions of the Offer and this Agreement(including, without limitation, the Minimum Condition), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase payment and pay for for, as promptly as practicable after expiration of the Offer, all Shares validly tendered and not withdrawn pursuant withdrawn; PROVIDED, HOWEVER, that notwithstanding the foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for up to 15 business days, and agrees on a one-time basis if all other conditions to the Offer as soon as practicable after have been met, to extend the expiration date for the Offer for 10 business days if on the relevant date of expiration at least 45% of the Offer then outstanding Shares (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub calculated on a timely basis funds sufficient to purchase fully diluted basis) have been tendered and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to not withdrawn from the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Merger Sub shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Lawslaws. Parent and SubParent, on the one hand, Merger Sub and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it which shall have become false or misleading in any material respect or as otherwise required by applicable Law. misleading, and Parent and Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the other Offer Documents before they are filed with the SEC or as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Merger Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time the opportunity to time from the SEC or its staff with respect to review and comment upon the Offer Documents promptly after Parent’s prior to their being filed with, or Sub’ssent to, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events or circumstances set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and or be continuing (and not waived by Parent or Sub in their sole discretion)existing, Purchaser agrees to, and Parent agrees to cause Purchaser to, commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. Parent and Purchaser agree that the obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (the "Minimum 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, Purchaser or any of their affiliates, constitute more than 80% of the outstanding Shares at the expiration of the Offer and also shall be subject to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) and to make any other changes in the terms and conditions of the Offer; provided, however, that Parent and Purchaser agree that no change may be made without the consent of the Company which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer, which extends the expiration date of the Offer (except that Purchaser may extend the expiration date of the Offer (a) as required to comply with any rule, regulation or interpretation of the minimum number Securities and Exchange Commission (the "SEC") or (b) for one or more times each for an aggregate period of Shares contemplated by up to 15 days (and not to exceed 60 days from the Minimum Condition, date of commencement) for any reason other than those specified in the immediately preceding clause (iva)) or which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesOffer. Subject to the terms and conditions of the Offer and this Agreement(including, Sub shallwithout limitation, the Minimum Condition), Purchaser agrees to, and Parent shall agrees to cause Sub Purchaser to, accept for paymentpay, purchase and pay as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offerwithdrawn.
(b) Unless extended As soon as provided in this Agreement, the Offer shall expire reasonably practicable on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the of commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall Purchaser agree that Purchaser will file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the OfferOffer and the other Transactions (as hereinafter defined), which shall include have been provided to the Company and to which the Company shall not have reasonably objected. Parent and Purchaser agree that the Schedule 14D-1 will contain or will incorporate by reference an offer to purchase, form purchase (the "Offer to Purchase") and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubParent, on the one hand, Purchaser and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it which shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the other Offer Documents before they are filed with the SEC or as so corrected to be disseminated to holders of Shares, in each case as and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto extent required by the Company and its counselapplicable federal securities laws.
Appears in 1 contract
Sources: Merger Agreement (Ud Delaware Corp)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated in accordance with Section 8.1, Sub shall commence (within occurred that would give rise to a right to terminate the meaning of Rule 14d-2(a) Offer pursuant to any of the Exchange Act) the Offer conditions set forth in Annex I, as promptly as practicable after the date hereof (hereof, but not in no event later than five Business Days following the fifth (5th) Business Day from and including the date of initial public announcement of the execution of this Agreement). The obligation of Sub to commence , Merger Subsidiary shall amend the Offer shall be subject only to (i) increase the purchase price to $89.50 per Share, net to the condition seller in cash, (ii) provide that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant conditions to the Offer shall be subject only as set forth in Annex I and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the satisfaction (or waiver by Parent or Sub in their sole discretion (but requirements of this Agreement. The Offer shall be subject to the next sentence)) 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 that, together with the Shares then owned by Parent and its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and to the other conditions set forth in such Annex A. Sub I and to no other conditions. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or change and to make any other changes in the terms of or conditions to the Offer except that, Offer; provided that without the prior written consent of the Company, Sub Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not waive the condition in clause be waived, (iB) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) that changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought in the Offer, (iii) reduces amends or adds to the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a any manner adverse to the holders of Shares. Subject to the terms and conditions stockholders of the Offer Company and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after (C) the expiration of date shall not be extended except as otherwise provided herein. Notwithstanding the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Companyforegoing, (ix) Merger Subsidiary shall extend the Offer on one if at the scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer any of the events set forth in Annex A conditions to the Offer shall have occurred and not be continuingsatisfied or waived, from time to time until such time as such event conditions are satisfied or events shall no longer exist, waived; and (iiy) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof Nasdaq Global Select Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), thenMerger Subsidiary shall, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with 2 Table of Contents Rule 14d-11 under of the Exchange Act and, if applicable and 1934 Act. Subject to the extent permitted under such foregoing, including the requirements of Rule 14d-11, thereafter extend such subsequent offering periodand upon the terms and subject to the conditions of the Offer, Merger Subsidiary 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 (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(db) As soon promptly as practicable on after the date hereof, but in no event later than five Business Days following the Offer is commencedpublic announcement of the execution of this Agreement, Parent Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC a Tender Offer Statement on Schedule TO with respect an amendment to the OfferSchedule TO, which shall include the a revised offer to purchase, purchase and form of the related letter of transmittal and form of notice of guaranteed delivery summary advertisement reflecting the terms and all other ancillary Offer documents conditions set forth in this Agreement (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with , and (ii) to the extent required by applicable provisions of the Exchange Act. Parent and Sub shall U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities LawsShares. Parent and SubEach of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees to take all steps necessary Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or disseminated to holders of Sharesthe Offer Documents, and Parent and Sub Merger Subsidiary shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with any comments or communications, whether written or oral, that oral comments Parent, Sub Merger Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly promptly, but in no event later than twelve hours, after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Section 8.1commenced, Sub shall commence (within would give rise to a right to terminate the meaning of Rule 14d-2(a) Offer pursuant to any of the Exchange Act) the Offer conditions set forth in Annex I, as promptly as practicable after the date hereof (but not and in any event no later than the fifth (5th) five Business Day from and including Days after the date hereof), Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence (within the meaning of initial public announcement of this Agreement)Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. The obligation of Sub to commence the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses Offer, prior to the scheduled expiration of the Offer (v)(aas it may be extended hereunder) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent or Sub in their sole discretion)Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except thatOffer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer Condition may not be made which (i) decreases the Offer Price payable in the Offerwaived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I, or which otherwise amends or modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a any manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a) . Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) 20 Business Days after the commencement of the Offer (determined pursuant to Rule for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act)▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Sub may, without the consent of the Company, (i) Merger Subsidiary shall extend the Offer on one (1) if, at the scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as conditions, (y) the reasonable determination by Parent that any such event condition to the Offer is not capable of being satisfied on or events shall no longer existprior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (iiz) extend the Offer End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Merger Subsidiary may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request provide one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act and1934 Act, if applicable if, as of the commencement of each such period, there shall not have been validly tendered and not withdrawn pursuant to the extent permitted under such Offer and any prior Subsequent Offering Period that number of Company Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253(a) of Delaware Law. Subject to the foregoing, including the requirements of Rule 14d-11, thereafter extend such subsequent offering periodand upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include the offer summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase, form Purchase and forms of the related letter of transmittal and form summary advertisement, if any, in respect of notice of guaranteed delivery and all other ancillary the Offer documents (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent , and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable federal securities Lawslaws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Parent and SubEach of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Company Shares, in each case as and to the extent required by applicable U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Merger Subsidiary shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or other communications. The Company , and its counsel shall be given (B) a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration to all reasonable additionsbe given), deletions including by participating with Parent and Merger Subsidiary or changes suggested thereto by their counsel in any discussions or meetings with the Company and its counselSEC.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp)
The Offer. (a) Provided that Subject to the conditions of this Agreement Agreement, Purchaser shall, and Parent shall not have been terminated cause Purchaser to use commercially reasonable efforts to commence within five (5) Business Days from the date hereof (and in accordance with Section 8.1any event Purchaser shall, Sub and Parent shall cause Purchaser to, commence within ten (10) Business Days from the date hereof), the Offer within the meaning of Rule 14d-2(a) the applicable rules and regulations of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)SEC. The obligation obligations of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Purchaser to, and the obligation of Sub Parent to cause Purchaser to, accept for payment, purchase and pay for Shares for, any shares of the Company Common Stock tendered pursuant to the Offer shall be subject only to (i) there being validly tendered and not withdrawn prior to the satisfaction expiration of the Offer that number of shares of the Company Common Stock that, together with shares of the Company Common Stock already owned by Parent and Purchaser or their respective Affiliates, which shall include, for the avoidance of doubt, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, would represent at least a majority of the Fully Diluted Shares (the “Minimum Tender Condition”) and (ii) the satisfaction, or waiver by Parent or Sub Purchaser, of the other conditions and requirements set forth in their sole discretion Exhibit C as such conditions may be modified in accordance with the express terms of this Agreement. The initial expiration date of the Offer shall be midnight (but subject to New York City time) on the next sentence)twentieth (20th) Business Day following commencement of the Offer (determined using Rule 14d-1(g)(3) of the conditions set forth in such Annex A. Sub Exchange Act). Purchaser expressly reserves the right in its sole discretion to waive waive, in whole or in part, any conditions condition to the Offer or change modify the terms of the Offer Offer, except that, without the prior written consent of the Company, Sub may Purchaser shall not waive the condition in clause (i) reduce the number of Annex A (shares of the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in Company Common Stock subject to the Offer, (ii) changes reduce the form of consideration to be paid in the OfferOffer Price, (iii) reduces the maximum number of Shares to be purchased in the Offer waive or the minimum number of Shares contemplated by amend the Minimum Tender Condition, (iv) imposes conditions add to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A Exhibit C or (v) amends modify any other term of the Offer condition set forth in a Exhibit C in any manner adverse to the Company or the holders of Shares. Subject the Company Common Stock, (v) except as otherwise provided in this Section 2.1(a), extend the Offer or change the form of consideration payable in the Offer or (vii) otherwise amend the Offer in any manner adverse to the Company or the holders of the Company Common Stock. The parties hereto agree to cooperate in good faith to modify the terms and conditions of the Offer as and if required by the SEC. Notwithstanding any provision of this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant Agreement to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for paymentcontrary, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent Purchaser shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; provided, however, that Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, extend the Offer beyond the Outside Date. IfIn addition, unless this Agreement has been terminated in accordance with its terms, if at the Initial Expiration Time or subsequent otherwise scheduled expiration time related to an extension date of the Offer, including an extension pursuant to this sentence, Offer (i) any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant condition to the Offer has is not been satisfied (or waived in accordance with this Agreement)satisfied, then, if requested by the Company, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, extend the Offer through for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed to by the Company) and (ii) if the Marketing Period has not ended at the time as of the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any satisfaction or waiver of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Exhibit C, Purchaser may, by their natureand Parent may cause Purchaser to, extend the Offer to a date that is not more than (2) two Business Days after the end of the Marketing Period; provided, however, that Purchaser shall not be cured by required to, and Parent shall not be required to cause Purchaser to, extend the Company through Offer beyond the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case Outside Date. On the Company may (if all other terms and subject to the conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to and this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waivedAgreement, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub Purchaser shall, and Parent shall cause Sub Purchaser to, accept and pay for (subject to any withholding of Tax pursuant to Section 3.2(e)) provide a subsequent offering period all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer (a “Subsequent Offering Period”as it may be extended and re-extended in accordance with this Section 2.1(a)). Nothing contained in this Section 2.1(a) shall affect any termination rights in Article VIII.
(b) On the date of commencement of the Offer, Parent and Purchaser shall file with the SEC, pursuant to and in accordance with Rule 14d-11 14d-3 and Regulation M-A under the Exchange Act andAct, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the contain an offer to purchase, form of the purchase and a related letter of transmittal and form of notice of guaranteed delivery summary advertisement (such Schedule TO and all other ancillary the documents included therein pursuant to which the Offer documents (collectivelyshall be made, together with any supplements or amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall Purchaser agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares shares of the Company Common Stock as and to the extent required by applicable federal securities Lawsthe Exchange Act. The Company shall promptly furnish to Parent and SubPurchaser all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Purchaser for inclusion therein. Each of Parent, on the one hand, Purchaser and the Company, on the other hand, agree to Company shall promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees and to correct any material omissions therein; and each of Parent and Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to holders of Shares the Company’s stockholders, in each case as and to the extent required by applicable federal Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel copies of any written comments, and shall inform the Company and its counsel of any oral comments or communications, whether written or oraldiscussions, that Parent, Sub Purchaser or their counsel may receive from time to time from or engage in with the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communicationsthe commencement or occurrence of any such discussions. The Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Purchaser shall provide the Company and its counsel shall be given a reasonable opportunity to review any responses to and comment on such comments Offer Documents or communicationsresponse (including the proposed final version thereof), and Parent and Sub Purchaser shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and or its counsel.
(c) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer.
(d) Purchaser shall not terminate the Offer prior to any scheduled expiration thereof without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Article VIII. In the event that this Agreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of shares of the Company Common Stock in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered shares of the Company Common Stock to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shallthe Offeror shall make the Offer by way of takeover bid circular on the terms and conditions set forth as Schedule 1.1(a) hereto, and Parent including, without limitation, the following: (i) the Offer shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and be open until 8:00 p.m. (Calgary time) on the 22nd day after the date of the bid as determined under the Securities Act (Alberta) or the first business day thereafter if such day is not withdrawn a business day; (ii) the consideration pursuant to the Offer as soon as practicable after the expiration shall be Cdn. $24.00 for each Common Share of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) Company; and (j). Parent shall provide or cause iii) the obligation of the Offeror to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for take-up pursuant to the Offer shall be conditional upon there having been deposited under, and not withdrawn from, the Offer at least 66 2/3% of the Common Shares (on a fully-diluted basis), other than those Common Shares held by the Offeror or its affiliates or by persons whose Common Shares may not form part of any minority approval of a subsequent acquisition transaction (the "Minimum Condition"). Subject to Section 1.2, the Offeror shall issue and mail to Shareholders the Offer, a formal take-over bid circular (the "Offer Circular") and related letter of transmittal and notice of guaranteed delivery on or before 12:00 midnight (Calgary time) on January 31, 2000.
(b) Unless extended as provided The Offer shall be made in this Agreement, the accordance with all applicable laws.
(c) The Offer shall expire on the date (referred to in Section 1.1(a)(i), provided that the “Initial Expiration Time”) that is twenty (20) Business Days after Offer may be extended one or more times at the commencement sole discretion of the Offeror if the conditions set forth in the Offer are not satisfied at the date and time at which the Offer otherwise expires (determined such time, as extended, the "Expiry Time"). Subject to the satisfaction or waiver of the conditions set forth in the Offer, the Offeror shall, on the first business day following the date that the conditions set forth in the Offer are satisfied and the Offeror is duly authorized under applicable law, accept for payment and pay for all Common Shares validly deposited (and not properly withdrawn) pursuant to Rule 14d-1(g)(3the Offer. The Offeror shall use reasonable commercial efforts to consummate the Offer, subject only to the terms and conditions thereof and this Agreement. The Offeror will not amend the terms of the Offer, other than (i) under to increase the Exchange Act). Sub mayconsideration payable thereunder, (ii) to waive any conditions thereof, (iii) to reduce the Minimum Condition, provided it cannot be reduced below 50% of the outstanding Common Shares without the consent of the Company; (iv) to otherwise amend any terms or conditions thereof, provided such amendment is not adverse to the Shareholders; or (iv) to extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodexpiry thereof.
(d) As soon as practicable If on the date first occasion on which the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with Offeror has taken up any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Common Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect pursuant to the Offer Documents promptly after Parent’s or Sub’sthe Common Shares taken up represent less than 90% of the then outstanding Common Shares, as then the case may be, receipt of such comments or communications. Offeror shall extend the Offer for at least 10 days.
(e) The Company and Offeror shall cause its counsel shall be given a reasonable opportunity depositary to review any responses provide to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsela copy of all reports of Common Shares tendered to the Offer at the same time that such reports are provided to the Offeror.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 7.1 herein and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuingexisting, until such time as such promptly as practicable (but in no event or events later than ten (10) days after the public announcement of the execution of this Agreement), Purchaser shall no longer exist, and commence (iiwithin the meaning of Rule 14d-2 promulgated under the Exchange Act) extend a cash tender offer to acquire all of Shares at the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable Price. Subject to the Offer. IfMinimum Condition, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions set forth in Article 6 hereof and subject to the obligation of Sub other conditions set forth in Annex A hereto, Purchaser shall consummate the Offer in accordance with its terms and to accept for payment, purchase payment and promptly pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested as soon as Purchaser is legally permitted to do so under applicable law. The Offer shall be made by the Company, Sub shall, and Parent shall cause Sub to, extend means of the Offer through such time as the Company may specify, which time to Purchase and shall be no later than subject to the Termination Date; provided that Minimum Condition and the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause Annex A hereto (v)(bcollectively, the “Offer Conditions”) and shall reflect, as appropriate, the other terms set forth in this Agreement.
(b) Purchaser expressly reserves the right to modify the terms and conditions of the Offer, except that, without the written consent of the Company neither Parent nor Purchaser shall (i) amend or waive the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration, (iv) decrease the number of Shares sought, or (v)(cv) of Annex A are satisfied) request one amend or more extensions impose any other condition of the Offer pursuant in any manner adverse to this sentence for up the holders of the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company (x) increase the amount it offers to thirty (30) days pay per Share in the aggregate). Nothing Offer, and, in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all connection therewith, extend the period of the Offer to the extent required by law, (y) extend the Offer for a period not to exceed ten (10) business days, notwithstanding that all conditions to the Offer are satisfied or waived, but the number as of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time date of the Offer, Sub if, immediately prior to the expiration date of the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer constitute less than ninety percent (90%) of the outstanding Shares and (z) from time to time, in its sole discretion, extend the expiration date if on the Company so requests Sub shallinitial scheduled expiration date of the Offer, and Parent which shall cause Sub tobe the date which is twenty (20) provide business days after the date the Offer is commenced, all conditions to the Offer will not have been satisfied or waived. Purchaser shall extend the Offer from time to time until a subsequent offering period date which is not more than sixty (a “Subsequent Offering Period”60) in accordance with Rule 14d-11 under business days after commencement of the Exchange Act andOffer if, if applicable and to the extent permitted under such Rule 14d-11that, thereafter extend such at the initial expiration date of the Offer, or any extension thereof, the conditions to the Offer set forth in Annex A shall not have been satisfied or waived. Any extensions of the period of the Offer shall be subject to termination of this Agreement pursuant to Section 7.1. The Company agrees that no Shares held by the Company will be tendered pursuant to the Offer. Except as otherwise required by the Shareholders’ Agreement, the Company’s stockholders shall retain their withdrawal rights during any extension of the Offer or subsequent offering period.
(dc) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include . The Schedule TO will contain or incorporate by reference the offer Offer to purchase, Purchase and a form of the related letter of transmittal transmittal, summary advertisement and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments documents. Parent and supplements thereto, Purchaser will take all steps necessary to cause the “Offer Documents”). The Offer Documents will comply in all material respects to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable provisions federal securities laws. Notwithstanding the foregoing, Parent and Purchaser shall, at a minimum, disseminate the Offer Documents by (i) delivery of the Offer Documents to the beneficial holders of the Shares in compliance with Rule 14d-4(a)(3) promulgated under the Exchange Act and (ii) summary publication appearing in The Wall Street Journal or similar newspaper with national circulation, in compliance with Rule 14d-4(a)(2) promulgated under the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to respect, and Purchaser will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to Purchaser will provide the Company and its counsel in writing with any comments or other communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or other communications. The , and to consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to any responses to such comments or other communications.
(d) The parties agree that the Offer Conditions are for the sole benefit of Purchaser and, except as provided in Section 1.1(b), may be asserted by Purchaser regardless of the circumstances giving rise to such Offer Condition or may be waived by Purchaser, in whole or in part, at any time and from time to time, in its sole discretion; provided however, that neither Purchaser nor Parent may assert the nonsatisfaction of any Offer Condition if such nonsatisfaction is the result of Purchaser or Parent’s breach of any representation, warranty, agreement or covenant contained herein. The failure by Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to other facts or circumstances, and Parent each such right shall be deemed an ongoing right that may be asserted at any time and Sub shall give due consideration from time to all reasonable additions, deletions or changes suggested thereto by the Company and its counseltime.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article IX hereof and none of the events set forth in Annex I hereto (the “Tender Offer Conditions”) shall have occurred and be continuing, Sub on April 4, 2007 (or such other day as the parties shall agree in writing), the Parent shall cause the Purchaser (and the Seller shall cooperate with the Parent and the Purchaser) to commence (within the meaning of Rule 14d-2(a) 14d-2 of the Exchange Act) an offer to purchase all outstanding shares of Seller Common Stock at the Offer as promptly as practicable after Price and shall use its reasonable best efforts to consummate the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Offer, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the terms and conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, hereof and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Sharesthereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer and this AgreementConditions, Sub the Purchaser shall, and the Parent shall cause Sub it to, promptly after the expiration of the Offer, accept for payment, purchase and pay for (after giving effect to any required withholding Tax), all Shares shares of Seller Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer and not withdrawn (the time and date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.Table of Contents
(b) Unless extended as provided The Purchaser expressly reserves the right, in this Agreementits sole discretion, to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided, however, that without the prior written consent of the Seller, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, waive or amend the Minimum Condition (as defined in Annex I hereto), decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of shares of Seller Common Stock. The Offer shall expire remain open until 12:00 midnight, New York time, on the date (the “Initial Expiration Time”) that is twenty twenty-five (2025) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any (the “Expiration Date”), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the succeeding sentence or as may be required by applicable Laws or interpretations or positions of the events set forth Securities and Exchange Commission or its staff (the “SEC”), in Annex A which event the term “Expiration Date” shall have occurred mean the latest time and be continuing, until such time date as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentenceas so extended, any of the conditions to the obligation of Sub to accept for paymentmay expire; provided, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement)however, then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Purchaser may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. If on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by the Purchaser, the Purchaser may extend the Offer from time to time; provided, however, that, on such Expiration Date, (i) if the waiting period under the HSR Act and, if or under any applicable and foreign statutes or regulations applicable to the extent permitted under such Rule 14d-11Offer or the Merger shall have not expired or been terminated, thereafter the Purchaser shall extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations or (ii) if any of the Tender Offer Conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, the Purchaser shall extend the Offer from time to time in consecutive increments of up to five (5) Business Days each until the SEC time such condition or its staff with respect conditions shall no longer exist or any of the matters described in such paragraphs (a) or (b) shall have become final and non-appealable; provided, further, however that the Purchaser shall not be required to extend the Offer beyond the Outside Date (defined in Section 9.1(b) below). Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of the Expiration Date, the Purchaser will accept for payment and pay for all shares of Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt Expiration Date of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselOffer.
Appears in 1 contract
Sources: Merger Agreement (Xerox Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and or be continuing (and not waived by Parent or Sub other than the requirements set forth in their sole discretionclauses (i)-(iv) of Annex A), and Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than 5 business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Sub Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of each of the conditions set forth in such Annex A. Sub A hereto. Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) and to make any other changes the form of consideration to be paid in the terms and conditions of the Offer; PROVIDED, (iii) HOWEVER, that no change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies A; and PROVIDED FURTHER that the conditions set forth condition in such clause (iv) of Annex A or (v) amends may not be waived by Purchaser nor may any other term of the Offer in a manner adverse change be made to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, such condition without the consent of the Company, (i) . Purchaser shall from time to time extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the scheduled expiration date of date, which shall initially be 20 business days following the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension commencement of the Offer, including an extension pursuant for up to this sentence5 business days in each instance (or for such different period to which the Company shall reasonably agree) if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser's obligation of Sub to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied maywaived. In addition, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, waived but the number of Shares shares of Class A Common Stock validly tendered and not withdrawn, together with the Sharesshares of Class A Common Stock held by Parent and Purchaser, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute is less than ninety percent (90%) of the then-outstanding number of Shares required to consummate the Merger pursuant to Section 2.10 shares of Class A Common Stock (assuming the exercise conversion by Parent of all shares of Class B Common Stock to Class A Common Stock as contemplated by the Top-Up Option in fulllast sentence of this Section 1.01(a)), then, then upon the applicable expiration time date of the Offer, Sub may (and if the Company so requests Sub shallPurchaser shall provide "subsequent offering periods," as such term is defined in, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with with, Rule 14d-11 under the Exchange Act andAct, if applicable for an aggregate period not to exceed twenty (20) business days (for all such extensions) and to Purchaser shall (A) give the extent permitted under such Rule 14d-11, thereafter extend required notice of such subsequent offering period.
period and (dB) As soon immediately accept and promptly pay for all Shares tendered as of such applicable expiration date. Subject to the terms of the Offer, 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 Offer Effective Time if, and only if, such conversion would permit Purchaser to acquire shares of Class A Common Stock representing at least 90% of the then outstanding Class A Common Stock.
(b) The Per Share Amount shall, subject to applicable withholding of Taxes (as hereinafter defined), be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules 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 commencedto 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, Parent 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 Sub 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 "SCHEDULE TO") with respect to the Offer, which . The Schedule TO shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule TO, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubParent, on the one hand, Purchaser and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws to give effect to the Offer. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are filed and all amendments and supplements thereto prior to their filing with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events --------- set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)continuing, and Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof. The obligation of Sub Purchaser to accept make payment for payment, purchase and pay for Shares tendered the Trust Units pursuant to the Offer shall be subject only to the condition (the "Minimum Condition") that ----------------- Beneficiaries shall have validly tendered, and not withdrawn, 8,651 Trust Units prior to the expiration of the Offer and also shall be subject to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of each of the other conditions set forth in such Annex A. Sub A hereto. Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Trust Unit payable in the Offer, (ii) and to make any other changes the form of consideration to be paid in the terms and conditions of the Offer; provided, (iii) however, that no change may be -------- ------- made which decreases the price per Trust Unit payable in the Offer or which reduces the maximum number of Shares Trust Units to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies hereto. Notwithstanding the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreementforegoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, Liquidating Trustee: (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the scheduled expiration date date, which shall be 20 business days following the commencement of the Offer Offer, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A conditions to Purchaser's obligation to pay for the Trust Units shall have occurred and not be continuing, until such time as such event satisfied or events shall no longer exist, and waived; or (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC"), or the --- staff thereof thereof, applicable to the Offer. IfPurchaser shall pay for up to 21,627 of the Trust Units which Beneficiaries have validly tendered (and not withdrawn) promptly following the acceptance thereof for payment pursuant to the Offer; provided that, if more than 21,627 Trust Units are so tendered, the Purchaser ------------- shall accept and purchase at least 21,627 Trust Units from such Beneficiaries on a pro rata basis, with such adjustments to eliminate fractions as the Initial Expiration Time or subsequent expiration time related Purchaser, in its sole discretion, shall determine. Notwithstanding the immediately preceding sentence and subject to an extension the applicable rules of the SEC and the terms and conditions of the Offer, including an extension pursuant Purchaser expressly reserves the right to this sentence, any of the conditions delay payment for Trust Units in order to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (comply in whole or waived in accordance part with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through applicable laws. Any such time as the Company may specify, which time delay shall be no later than effected in compliance with Rule 14e-1(c) under the Termination Date; provided that Securities Exchange Act of 1934, as amended (the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate"Exchange Act"). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.------------
(cb) If all As promptly as reasonably practicable on the date of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time commencement of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any 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") and ----------------- forms of the related transfer agreement (the "Transfer Agreements") and notices ------------------- and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent Purchaser and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, --------------- Liquidating Trustee agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Purchaser further agrees to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Beneficiaries, 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 the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsellaws.
Appears in 1 contract
Sources: Liquidation Agreement (Sulzer Medica Usa Holding Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article VIII hereof and none of the events set forth in Exhibit A hereto (the "Tender Offer Conditions") shall have occurred, Sub (i) as promptly as practicable but in no event later than the fifth business day from the date of this Agreement, Parent shall (A) cause the Purchaser to commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) the Offer as promptly as practicable and, (B) after affording the date hereof Company a reasonable opportunity to review and comment thereon, file all necessary documents with the Securities and Exchange Commission (but not later than the fifth "SEC") in connection with the Offer (5ththe "Offer Documents") Business Day from and including (ii) Parent shall use reasonable best efforts to consummate the date of initial public announcement of this Agreement)Offer, subject to the terms and conditions thereof. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase payment and pay for any Shares tendered pursuant to the Offer shall thereto will be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Tender Offer or change the terms of the Offer except that, without Conditions.
(b) Without the prior written consent of the Company, Sub may the Purchaser shall not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases decrease the Offer Price or change the form of consideration payable in the Offer, (ii) changes decrease the form number of consideration Shares sought to be paid purchased in the Offer, (iii) reduces subject to Parent's and Purchaser's right to waive same (subject to clause (iv) below), amend the maximum number of Shares Tender Offer Conditions or impose additional conditions to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to waive the Offer Minimum Condition (as defined in addition to those set forth in Annex Exhibit A hereto or which otherwise modifies the conditions set forth in such Annex A hereto) or (v) amends amend any other term of the Offer in a any manner adverse to the holders of Common Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply shall remain open until the later of (x) the date that is 20 business days (as such term is defined in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.Rule 14d-l(c)
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article IX, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable following the date hereof and in any event within ten (10) Business Days after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)hereof. The obligation of Merger Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)to, and the obligation of Parent to cause Merger Sub to to, accept for payment, purchase and pay for Shares payment shares of Company Common Stock validly tendered pursuant to the Offer and to pay the Offer Price for each such tendered and not subsequently withdrawn share shall be subject only to the satisfaction (or waiver by Parent or Merger Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in Annex A (such Annex A. conditions, as they may be amended in accordance with this Agreement, the “Tender Offer Conditions”). Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 2.1(b), to waive in whole or in part any conditions such condition, to increase the Offer Price payable in the Offer, and to make any other changes to the Offer or change the terms and conditions of the Offer except thatOffer; provided, however, that without the prior written consent of the Company, Merger Sub may shall not waive the condition in clause (i) amend or waive satisfaction of the Minimum Condition (as defined in Annex A (the “Minimum Condition”) or the condition in clause A), (ii) or change the form of consideration to be paid pursuant to the Offer, (iii) of Annex A, and no change in the Offer may be made which (i) decreases decrease the Offer Price payable in the Offer, (iiiv) changes decrease the form number of consideration shares of Company Common Stock sought to be paid purchased in the Offer, (iiiv) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes impose conditions to the Offer that are in addition to those set forth in Annex A hereto hereto, (vi) make any change in the Offer that would require an extension or which otherwise modifies delay of the conditions set forth then current Expiration Date; provided, however, that this clause (vi) shall not limit the ability of Parent or Merger Sub to extend the Expiration Date in accordance with Section 2.1(b), (vii) amend or modify the Tender Offer Conditions (other than to waive such Annex A Tender Offer Conditions, except for the Minimum Condition), or (vviii) amends amend or modify any other term of the Offer in a any manner adverse to the holders of Shares. Subject to the terms and conditions shares of Company Common Stock in their capacities as holders of shares of Company Common Stock.
(b) The initial expiration date of the Offer shall be the twentieth (20th) Business Day after the date that the Offer is commenced (determined pursuant to Rule 14d-1(g)(3) and Rule 14d-2 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with (x) the effective termination of this Agreement in accordance with Article IX hereof or (y) an Offer Termination in accordance with Section 2.1(f). Notwithstanding the foregoing, unless this Agreement is terminated in accordance with Article IX hereof, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer on one Conditions is not satisfied or more occasions waived by Merger Sub, for any period not exceeding ten such periods of up to five (105) Business Days for any extensionat a time (or such other period as shall be consented to in writing by the Company) as Merger Sub may deem reasonably necessary, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuingbut, until such time except as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any applicable Law, rule, regulation, interpretation or position of NASDAQ, the SEC or the staff thereof of the SEC (the “SEC Staff”) applicable to the Offer. IfOffer (including in connection with an increase in the Offer Price), at in no event may the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension Date be extended pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(bi) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for to a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.date
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have previously been terminated in accordance with Section 8.17.1, Sub shall commence none of the events or conditions in clause (within the meaning of Rule 14d-2(ad) of Annex 1 (except for those events or conditions which cannot, by their terms, occur until the Acceptance Time) shall have occurred and be continuing, the Company has fulfilled its obligation to provide information to Parent and the Purchaser pursuant to Section 1.1(h) and the Company is prepared (in accordance with Section 1.2(b)), to file the Schedule 14D-9 with the Securities and Exchange ActCommission (the SEC) on the Offer same date as promptly as practicable the Purchaser commences the Offer, the Purchaser shall, and Parent shall cause the Purchaser to, within 10 Business Days after the date hereof (but not later than of the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement), commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligation of Sub the Purchaser to commence accept for payment or pay for any shares validly tendered in the Offer and not properly withdrawn shall be subject only to:
(i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that none number of Shares which, together with the events set forth in clauses (v)(a) number of Shares, if any, then owned of record, directly or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived indirectly, by Parent or Sub in their sole discretionthe Purchaser, represents at least a majority of the Shares then outstanding (determined on a Fully Diluted Basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a Fully Diluted Basis) and entitled to vote upon the adoption of this Agreement on the date Shares are accepted for payment (collectively, the Minimum Condition); and
(ii) the satisfaction, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub the Purchaser in their sole discretion (but subject to the next sentence)) discretion, of the other conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those requirements set forth in Annex A hereto 1.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or which otherwise modifies waiver by Parent or the Purchaser in their sole discretion, of the other conditions and requirements set forth in such Annex A or (v) amends any other term of 1, the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub Purchaser shall, and Parent shall cause Sub the Purchaser to, accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable promptly after the expiration of the Offer Purchaser is legally permitted to do so under applicable Law (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on of such Shares, the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub the Purchaser on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub the Purchaser becomes obligated to accept for payment, payment and purchase and pay for pursuant to the Offer. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(bc) The Offer shall be made by means of an offer to purchase (the Offer to Purchase) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex 1. Parent and the Purchaser expressly reserve the right to increase the Offer Price, waive any condition to the Offer (except the Minimum Condition) or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify any of the other conditions and requirements to the Offer in a manner materially adverse to the holders of Shares, (vi) impose additional conditions to the Offer or (vii) extend the Expiration Date other than in accordance with this Agreement.
(d) Unless extended as provided in accordance with the terms of this Agreement, the Offer shall expire at 11:59 p.m. (Eastern time) on the date (the “Initial Expiration Time”) that is twenty (20) 20 Business Days after the commencement of the Offer (determined pursuant to calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the Offer (the Initial Expiration Date) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date on which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with this Agreement, the Expiration Date). Sub may.
(e) Notwithstanding anything in this Agreement to the contrary, the Purchaser shall be permitted and required to extend the Offer from time to time only as follows (and the Purchaser and Parent shall not extend the Offer for any other reason without the prior written consent of the Company, ) (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer Expiration Date any of the events conditions to the Offer (including the Minimum Condition or the other conditions and requirements set forth in Annex A 1) have not been satisfied or, to the extent permitted, waived by Parent or the Purchaser (except, for the avoidance of doubt, the Minimum Condition, which may not be waived), then the Purchaser shall have occurred (and be continuingParent shall cause the Purchaser to) extend the Offer for successive periods of up to 20 Business Days (and in increments of at least five Business Days) in order to permit the satisfaction of such condition or conditions or, until to the extent permitted, the waiver of such time as such event condition or events shall no longer existconditions, and (ii) the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. IfParent and the Purchaser agree that, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub extent requested in writing by the Company prior to accept for paymentany then-scheduled Expiration Date, purchase the Purchaser shall (and pay for Shares tendered pursuant to Parent shall cause the Offer Purchaser to) if the Antitrust Condition has not been satisfied or the CFIUS Approval has not been obtained on such then-scheduled Expiration Date (or and have not been waived in accordance with this Agreementby the Purchaser), thenand provided that it is reasonably expected that the Antitrust Condition will be satisfied and/or the CFIUS Approval will be obtained, if requested by as applicable, on or prior to the Company, Sub shall, and Parent shall cause Sub toOutside Date, extend the Offer through on one or more occasions, in consecutive increments of up to 10 Business Days and at least five Business Days each, until such time as the Company may specify, which time Antitrust Condition shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which and/or the breach or breaches preventing such conditions from being satisfied mayCFIUS Approval has been obtained, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIas applicable.
(cf) If all of Following the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the SharesAcceptance Time, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent necessary to obtain sufficient Shares to reach the Short Form Threshold (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of without regard to Shares required to consummate the Merger pursuant to Section 2.10 (assuming issuable upon the exercise of the Top-Up Option or Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in fullsettlement or satisfaction of such guarantee), thenthe Purchaser may, upon the applicable expiration time of the Offerin its sole discretion, Sub may provide for a “subsequent offering period” (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and Act. Subject to the extent permitted under terms and conditions of this Agreement and the Offer, the Purchaser shall, and Parent shall cause the Purchaser to, immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such Rule 14d-11, thereafter extend such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(dg) As soon as practicable on The Purchaser shall not terminate the date Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall, and Parent shall cause the Purchaser to terminate the Offer promptly and in any event shall not acquire any Shares pursuant thereto. If the Offer is commencedterminated by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
(h) On the date of the commencement of the Offer, Parent and Sub the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the Schedule TO). The Schedule TO shall include include, as exhibits: the offer Offer to purchasePurchase, a form of the related letter of transmittal and transmittal, a form of notice of guaranteed delivery summary advertisement and all other ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply Company shall promptly furnish to Parent all information concerning the Company that may be reasonably requested by Parent in all material respects connection with the applicable provisions of the Exchange Actany action contemplated by this Section 1.1(h). Parent and Sub shall the Purchaser agree to cause the Offer Documents to be disseminated to holders of Shares Shares, as and to the extent required by applicable federal securities Lawsthe Exchange Act, the SEC or its staff, The New York Stock Exchange (the NYSE), French regulations or the French Autorité des Marchés Financiers (the AMF) or its staff. Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to correct promptly correct any information provided by it such party for use in the Offer Documents Documents, if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary , and Parent and the Purchaser agree to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawsthe Exchange Act. No representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents before they are filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to the Purchaser shall promptly provide the Company and its counsel with copies of any comments or communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In the event that Parent or Purchaser receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and to use its reasonable best efforts to take such other actions as may be reasonably necessary to resolve the issues raised therein.
(i) The Offer Price shall be automatically adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by the Purchaser for the Shares.
Appears in 1 contract
The Offer. (a) Provided that Unless this Agreement shall not have been terminated in accordance with Section 8.1Article VII, Sub Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable after the date hereof (hereof, but not in no event later than the fifth July 11, 2012.
(5thb) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only (x) to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities or similar obligations then outstanding, other than the Series A Convertible Notes and the Series B Convertible Notes) (the “Minimum Condition”) and (y) to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)Purchaser) of the other conditions set forth in Annex A hereto (such Annex A. Sub conditions, together with the Minimum Condition, the “Offer Conditions”). Purchaser expressly reserves the right to waive any conditions of such Offer Conditions (other than the Minimum Condition), to increase the Offer or change Price and to make any other changes in the terms of the Offer except thatOffer; provided, however, that no change may be made without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made Company which (i) decreases the Offer Price payable in the OfferPrice, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares sought to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those the conditions set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or hereto, (v) (A) waives, amends or modifies the Minimum Condition or (B) modifies or amends any other term of the other Offer Conditions, in a the case of this subclause (B), in any manner that is or would reasonably be expected to be adverse to the holders of Shares. , (vi) makes other changes in the terms of the Offer that are in any manner, or would reasonably be expected to be, materially adverse to the holders of Shares or (vii) except as permitted by this Agreement, extends the expiration date of the Offer.
(c) Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be midnight, New York City time, on the twentieth (20th) business day from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act. Notwithstanding the foregoing, Purchaser shall (and Parent shall cause Purchaser to) (i) extend the Offer beyond any scheduled expiration date, if, at the scheduled expiration of the Offer, any of the Offer Conditions (other than the Minimum Condition) shall not be satisfied or, to the extent permitted by this Agreement, Sub waived, subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1, (ii) extend the Offer up to an aggregate of two (2) times at the request of the Company beyond any scheduled expiration date, if, at the scheduled expiration of the Offer, the Minimum Condition shall not be satisfied and (iii) 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 or the NASDAQ Stock Market (“NASDAQ”) that is applicable to the Offer. Each extension of the Offer pursuant to clause (i) of the immediately preceding sentence of this Section 1.1 shall not exceed the lesser of five (5) business days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the Offer Conditions to be satisfied, and each extension of the Offer pursuant to clause (ii) of the immediately preceding sentence of this Section 1.1 shall be ten (10) business days (unless otherwise agreed to in writing by the Company and Parent). Purchaser may, without the consent of the Company, extend the Offer beyond any scheduled expiration date for a period not to exceed five (5) business days, if, at the scheduled expiration of the Offer, the Minimum Condition shall not be satisfied. In addition, if, at the expiration date of the Offer, all of the Offer Conditions have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser), but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, without the consent of the Company (but in consultation with the Company), Purchaser may (subject to applicable Law) provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to ten (10) business days after Purchaser’s acceptance for payment of the Shares then tendered and not withdrawn pursuant to the Offer, in which event Purchaser shall, and Parent shall cause Sub Purchaser to, (A) give the required notice of such subsequent offering period and (B) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such expiration date. Nothing in this Section 1.1(c) shall (i) impose any obligation on Purchaser to extend the Offer beyond the Outside Date or (ii) be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 7.1.
(d) Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the Offer Conditions as of any expiration date of the Offer, Purchaser shall, and Parent shall cause Purchaser to, accept for payment, purchase payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable promptly after the it is permitted to do so under applicable Law (but in no event later than three (3) business days after such expiration date of the Offer Offer) (the date of acceptance for payment, the “Acceptance Date,” and the time of for acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). On or prior to the Acceptance Date, Parent shall provide or cause to be provided to Sub on a timely basis Purchaser the funds sufficient necessary to purchase and pay for any and all Shares that Sub Purchaser becomes so obligated to accept for payment, purchase and pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash and without any interest thereon, upon the terms and subject to the conditions of the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(de) As soon promptly as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall include the contain or incorporate by reference an offer to purchase, form purchase and forms of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments all amendments, supplements and supplements exhibits thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares the 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 upon the Offer Documents before they are filed with the SEC or and disseminated to holders of Shares, Shares and Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by consider in good faith any comments of the Company and its counselCompany. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel with any comments or communicationscomments, whether written or oral, that Parent, Sub Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The comments, to consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by provide the Company and its counselwith copies of all such responses, whether written or oral.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 hereof and none of the events set forth in Annex I shall have occurred and be existing, Sub as promptly as practicable (but in no event later than five business days after the public announcement of the execution of this Agreement), the Purchaser shall commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the ------------ Offer at the Offer Price, subject to there being validly tendered and not withdrawn prior to the expiration of the Exchange ActOffer, that number of Shares which represents at least 51% of the Shares then outstanding on a fully diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights and securities exercisable or convertible into Shares) the "Minimum Condition") and to the other conditions set forth in Annex ----------------- I hereto, and shall consummate the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)in accordance with its terms. The obligation obligations of Sub the Purchaser to commence accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), Minimum Condition and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves I hereto. The Offer shall be made by means of an offer to purchase (the right "Offer to waive any conditions to the Offer or change Purchase") containing the terms of the Offer except thatset forth in this ----------------- Agreement, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes Condition and the other conditions to the Offer in addition to those set forth in Annex A hereto I hereto. The Purchaser shall not amend or which otherwise modifies waive the conditions set forth in such Annex A Minimum Condition and shall not decrease the Offer Price or (v) amends decrease the number of Shares sought, or amend any other term condition of the Offer in a any manner adverse to the holders of Sharesthe Shares without the written consent of the Company; provided, however, that if -------- ------- on the initial scheduled expiration date of the Offer, which shall be twenty (20) business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date. Subject to The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toOffer, accept for payment, purchase payment and pay for all Shares validly tendered as soon as it is legally permitted to do so under applicable law; provided, however, that if, -------- ------- immediately prior to the initial expiration date of the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration equal less than 90% of the outstanding Shares, the Purchaser may extend the Offer for a period not to exceed ten (10) business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect --- to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall include the offer "Schedule 14D-l"). The Schedule 14D-1 will include, -------------- as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectivelywhich documents, together with any amendments and supplements thereto, and any other SEC schedule or form which is filed in connection with the “Offer and related transactions, are referred to collectively herein as the "Offer Documents”"). --------------- The Offer Documents will comply in all material respects with the applicable provisions of applicable federal securities laws and Section 552.07 of the Exchange ActWisconsin Statutes, if applicable, and, on the date filed with the SEC and on the date first published, mailed or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Parent or Purchaser with respect to information furnished by the Company to the Parent or Purchaser, in writing, expressly for inclusion in the Offer Documents. The information supplied by the Company to the Parent or Purchaser, in writing, expressly for inclusion in the Offer Documents and by the Parent or Purchaser to the Company, in writing, expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Parent and Sub shall the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. Each of Parent and Sub, on the one hand, Purchaser and the Company, on the other hand, agree Company agrees to promptly (i) correct any information provided by it for use in the Schedule 14D- 1 or the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect and (ii) to supplement the information provided by it specifically for use in the Schedule 14D-1 or as otherwise required by applicable Lawthe 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. Sub Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a the reasonable opportunity to review and comment on the Offer Documents Schedule 14D-1 before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, Parent and Sub agree to the Purchaser will provide the Company and its counsel counsel, in writing, with any comments or communicationscomments, whether written or oral, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) a failure to satisfy any of the Exchange Act) the Offer conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof (hereof, but not in no event later than five business days following the fifth (5th) Business Day from and including the date of initial public announcement of the terms of this Agreement), commence an offer (the "Offer") to purchase all of the outstanding shares (the "Shares") of common stock, $0.01 par value, of the Company (the "Common Stock")at a price of $42 per Share, net to the seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses (v)(a) or (v)(b) Offer prior to the expiration date of Annex A hereto shall have occurred and be continuing (the Offer and not waived withdrawn a number of Shares which, together with the Shares then owned by Parent or Sub in their sole discretion)Buyer, represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I hereto. Merger Subsidiary expressly reserves the right to waive the Minimum Condition or any of the other conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no to make any change in the Offer terms or conditions of the Offer; provided that no change may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in or decreases the Offer, (iii) reduces price per Share or the maximum number of Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto I or which otherwise modifies the amends such conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the OfferCompany.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall file with the SEC (as defined in Section 4.7) a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, Offer which shall include will contain the offer to purchase, purchase and form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, Buyer and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Buyer and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are Schedule 14D-1 prior to its being filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 1 contract
Sources: Merger Agreement (Compaq Dallas Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (but in accordance with Section 8.1no event later than five business days following the public announcement of the execution hereof), Sub Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), an offer to purchase all of the Exchange Act) Company's outstanding shares of common stock, par value $0.01 per share (the Offer "SHARES"), at a price of $6.50 per Share, net to the seller in cash (as promptly as practicable after such offer may be amended in accordance with the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement terms of this Agreement). The obligation of Sub to commence , the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion"OFFER"), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thatA hereto. Purchaser will not, without the prior written consent of the Company, Sub may not waive the condition in clause (i) decrease or change the form of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price consideration payable in the Offer, (ii) changes decrease the form number of consideration Shares sought pursuant to be paid in the Offer, (iii) reduces impose additional conditions to the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes change the conditions to the Offer, except that Parent in its sole discretion may waive any of the conditions to the Offer in addition to those other than the condition set forth in Annex A hereto or clause (1) of ANNEX A, which otherwise modifies may not be waived without the conditions set forth in such Annex A Company's prior written consent, or (v) amends make any other term change in the terms or conditions of the Offer in a manner that is adverse to the holders of Shares. Subject to Purchaser will, on the terms and conditions subject to the prior satisfaction or waiver of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toconditions to the Offer, accept for payment, purchase payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable promptly after expiration of the Offer; PROVIDED that, Purchaser may extend the Offer up to the tenth business day after the later of (i) the initial expiration date of the Offer and (ii) the date on which all such conditions shall first have been satisfied or waived. The Company agrees that no Shares held by the Company will be tendered to Parent pursuant to the Offer; PROVIDED, that Shares held beneficially or of record by any plan, program or arrangement sponsored or maintained for the benefit of employees of the Company shall not be deemed to be held by the Company, regardless of whether the Company has, directly or indirectly, the power to vote or control the disposition of such Shares. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for Shares validly tendered on or prior to the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, not withdrawn shall be subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant only to the Offerconditions set forth in Annex A hereto.
(b) Unless extended as provided in this Agreement, the Offer shall expire on On the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the of commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant Parent and Purchaser shall file or cause to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together filed with the Shares, if any, held by Parent Securities and Sub or any other direct or indirect wholly owned Subsidiary of Parent Exchange Commission (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to"SEC") provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments thereto, the "SCHEDULE 14D-1") with respect to the Offer, which shall include contain the offer to purchase, form of the purchase and related letter of transmittal and form of notice of guaranteed delivery and all other ancillary offer documents and instruments pursuant to which the Offer documents will be made (collectively, together with any supplements or amendments and supplements thereto, the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause Purchaser will disseminate the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities LawsShares. Parent and SubEach of Parent, on the one hand, Purchaser and the Company, on the other hand, agree to Company will promptly correct any information provided by it for use in the Offer Documents if it shall have become that becomes false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to and Parent and Purchaser will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed prior to their filing with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel with any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time be received from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as receipt thereof and to further provide the case may be, receipt of such comments or communications. The Company and its counsel shall be given with a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to participate in all reasonable additions, deletions or changes suggested thereto by substantive communications with the Company SEC and its counselstaff relating to the Offer Documents, the Offer or the transactions contemplated thereby.
Appears in 1 contract
Sources: Merger Agreement (Pacific Rehabilitation & Sports Medicine Inc)
The Offer. (a) Provided that this Agreement shall not have been --------- terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 11.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of ------------- Annex A I hereto shall have occurred and be continuing continuing, as promptly as ------- practicable, but in no event later than one business day, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (and not waived by Parent or Sub in their sole discretionthe "Form TO/A"), ---------- an amended Offer to Purchase (the "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"). The obligation of Sub Merger Co. to consummate the Offer and to accept --------- for payment, purchase payment and to pay for Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) the satisfaction (or waiver 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 that, together with the shares of Company Common Stock then owned by Parent or Sub in their sole discretion (but subject to the next sentence)) and/or Merger Co., represents 50.1% of the shares of Company Common Stock outstanding (the "Minimum ------- Condition") and (ii) the other conditions set forth in such Annex A. Sub I hereto. Merger --------- ------- Co. expressly reserves the right to waive any conditions to such condition (other than the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition relating to the expiration of the HSR Act, to increase the Per share of Company Common Stock Amount and to make any other changes in clause (ii) or (iii) the terms and conditions of Annex Athe Offer. Notwithstanding the foregoing, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferPer share of Company Common Stock Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces increases the maximum number of Shares to be purchased in the Offer Maximum Amount or the minimum number of Shares contemplated by the Minimum Condition, (iv) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I ------- hereto, (vi) extends the conditions set forth in such Annex A expiration date of the Offer or (vvii) otherwise alters or amends any other term of the Offer in a any manner adverse to the holders of Shares. Subject to shares of Company Common Stock; provided, however, that (x) Merger Co. may waive the terms and conditions of -------- ------- Minimum Condition or (y) the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer may be extended (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”1) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of to the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event extent required by law or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof --- applicable to the Offer, and (2) for up to 60 business days after the initially scheduled expiration date if upon any expiration of the Offer any condition to the Offer shall not be satisfied and there is a reasonable basis to believe that such condition could be satisfied within such 60 business day period. If, If at the Initial Expiration Time or subsequent expiration time related date of the Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, 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 an extension 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, including an extension pursuant to this sentencetogether with the shares of Company Common Stock then owned by Parent and Merger Co., any will represent 50.1% of the shares of Company Common Stock outstanding. Assuming the prior satisfaction or waiver of the conditions of the Offer and subject to the obligation of Sub foregoing right to accept for paymentextend the Offer, purchase and Merger Co. shall pay for Shares shares of Company Common Stock tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any soon as practicable after termination rights under ARTICLE VIIIthereof.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(db) As soon as practicable on following the date filing of the Offer is commenced, Parent and Sub shall file Form TO/A with the SEC a Tender Offer Statement on Schedule TO with respect SEC, Merger Co. shall take such steps as are reasonably necessary to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Amended Offer Documents to Purchase to be disseminated to the holders of Shares shares of Company Common Stock as and to the extent required by applicable federal securities Lawslaws. Parent and SubParent, on the one hand, Merger Co. and the Company, on the other hand, agree to Company shall correct promptly correct any information provided by it any of them for use in the Offer Documents if it which shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to misleading, and Parent and Merger Co. shall take all steps necessary to cause the Offer Documents Form TO/A as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares shares of Company Common Stock, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are prior to their being filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to Merger Co. will provide the Company and its counsel in writing with any -4- comments that Parent or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time Merger Co. receives from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of any such comments comments.
(c) Parent shall provide or communications. The Company and its counsel shall cause to be given provided to Merger Co. on a reasonable opportunity timely basis the funds necessary to review any responses to such comments or communicationsaccept for payment, and Parent pay for, any shares of Company Common Stock that Merger Co. becomes obligated to accept for payment, and Sub shall give due consideration pay for, pursuant to all reasonable additions, deletions or changes suggested thereto by the Company and its counselOffer.
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, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.1 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(aa) or through (v)(bi) of Annex A hereto shall have occurred and or be continuing continuing, Merger Sub shall commence (and not waived by Parent or Sub within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in their sole discretion), and no event later than ten business days after the date of this Agreement. The obligation of Merger Sub to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the “Minimum Condition”) that at least the number of Shares that shall constitute a majority of the then outstanding Shares on a Fully Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of each of the other conditions set forth in such Annex A. A hereto. Merger Sub expressly reserves the right to waive any conditions such condition, to increase the Offer or change price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer except Offer; provided, however, that, without the prior written consent of the Company, Sub (y) the Minimum Condition may not waive the condition in clause be waived and (iz) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which that (iA) decreases the Offer Price price per Share payable in the Offer, (iiB) changes the form of consideration to be paid payable in the Offer, (iiiC) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (ivD) amends any term of the Offer in any manner adverse to holders of the Shares, (E) imposes conditions to the Offer in addition to those not set forth in Annex A hereto or which otherwise modifies amends any of the conditions to the Offer set forth in such Annex A hereto in any manner adverse to any holder of Shares or (vF) amends any other except as otherwise provided in this Section 1.1(a), extends the term of the Offer in a manner adverse to Offer. Notwithstanding the holders of Shares. Subject to the terms and conditions of foregoing, Merger Sub may (i) extend the Offer and this Agreementfor one or more periods of not more than 10 business days each beyond the scheduled expiration date, Sub shall, and Parent which initially shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable be 30 business days following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act“Initial Expiration Date”). Sub may, without if, at the consent Initial Expiration Date or any subsequent scheduled expiration of the CompanyOffer, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A conditions to Merger Sub’s obligation to accept for payment Shares shall have occurred and not be continuing, until such time as such event satisfied or events shall no longer exist, and waived or (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”), or the staff thereof thereof, applicable to the Offer. IfThe Per Share Amount shall, at subject to applicable withholding of taxes, be net to the Initial Expiration Time or subsequent expiration time related seller in cash, upon the terms and subject to an extension the conditions of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of . Merger Sub to accept for payment, purchase and shall pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with withdrawn promptly following the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number acceptance of Shares required to consummate the Merger for payment pursuant to Section 2.10 (assuming the exercise Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the Top-Up Option in full), then, upon SEC and the applicable expiration time terms and conditions of the Offer, Merger Sub 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 Exchange Act. Merger Sub may (and if extend the Company so requests Sub shall, and Parent shall cause Sub to) provide Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period (a “Subsequent Offering Period”) in accordance with under Rule 14d-11 promulgated under the Exchange Act andto meet the objective that there be validly tendered, if applicable and in accordance with the terms of the Offer, prior to the extent permitted under expiration of the Offer (as so extended), and not withdrawn, a number of Shares which, together with Shares then owned by Parent and Merger Sub, represents at least 90% of the then outstanding Shares on a Fully Diluted Basis. If the payment equal to the Per Share Amount 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 Rule 14d-11payment shall have paid all transfer and other taxes required by reason of the payment of the Per Share Amount to a Person other than the registered holder of the certificate surrendered, thereafter extend or shall have established to the satisfaction of Merger Sub that such subsequent offering periodtaxes either have been paid or are not applicable. The Company agrees that no Shares held by the Company or any of its Subsidiaries shall be tendered in the Offer.
(db) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and 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, which . The Schedule TO shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule TO, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions Each of the Exchange Act. Parent and Merger Sub shall take all actions necessary to cause the Offer Documents to be disseminated to holders of Shares Shares, as and to the extent required by applicable U.S. federal securities Laws. Parent and SubEach of Parent, on the one hand, Merger Sub and the Company, on the other hand, agree Company agrees to correct promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and Parent and Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable U.S. federal securities Laws. The Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are prior to such documents being filed with the SEC or disseminated to holders of Shares, and . Parent and Merger Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel with a copy of any written comments or communications, whether written or oral, telephonic notification 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 Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The comments, shall consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to any responses to such comments or communicationscomments, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto by Parent, Merger Sub or their counsel. Parent and Merger Sub agree to use their reasonable best efforts to respond promptly to the SEC or its staff with respect any comments received from them relating to the Offer Documents.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Upon the expiration of the Offer, 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, as promptly as practicable, all Shares validly tendered and not properly withdrawn pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would --------- result in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) a failure to satisfy any of the Exchange Act) conditions set forth in Annex A hereto, the Offer Purchaser shall, and Parent shall cause the Purchaser to, as promptly as practicable after the date hereof (hereof, but not in no event later than five business days following the fifth (5th) Business Day from and including the date of initial public announcement of the terms of this Agreement), commence a tender offer (the "Offer") to purchase for cash all of the issued and ----- outstanding shares of Company Common Stock (the shares of Company Common Stock hereinafter referred to as the "Shares") at a price of not less than $5.37 per ------ Share net to the seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto there shall have occurred and be continuing validly tendered (and not waived by Parent or Sub withdrawn) in their sole discretion)accordance with the terms of the Offer, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant prior to the Offer shall be subject only expiration date of the Offer, that number of Shares which represents at least a majority of the outstanding Shares (the "Minimum Condition") and to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub A hereto. ------------------ Notwithstanding the foregoing, the Purchaser expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms or conditions of the Offer except thatOffer, provided that without the prior written consent of the -------- Company, Sub may the Purchaser shall not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, Condition and no shall not make any change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in or decreases the Offerprice per Share, (iii) reduces or the maximum number of Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies A. The Purchaser shall have the conditions right to extend the Offer (for not more than an aggregate of five business days (as defined in Rule 14d-1 under the Exchange Act)) from time to time without the consent of the Company. In addition to the rights set forth in such Annex A or (v) amends the two preceding sentences, if on any other term scheduled expiration date of the Offer in a manner adverse all conditions to the holders Offer shall not have been satisfied or waived, the Purchaser shall extend the Offer from time to time until such conditions have been satisfied or waived; provided that the Purchaser shall have -------- no obligation to extend the Offer beyond the date 60 days after commencement of the Offer unless the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act has not terminated or expired in which case not past the date set forth in Section 8.1(b) hereto. If on any scheduled expiration date of the Offer all conditions to the Offer (including the Minimum Condition) shall have been satisfied but the number of Shares tendered (and not withdrawn) pursuant to the Offer represent less than 90% of the outstanding Shares, on a fully-diluted basis (including for this purpose only options and warrants that are in-the-money and excluding for this purpose any right to acquire Shares that may not be exercised within 60 days from the applicable date), the Purchaser shall also have the right to extend the Offer from time to time without the consent of the Company (for not more than an aggregate of 10 business days) in order to permit the Purchaser to solicit the tender of additional Shares pursuant to the Offer. Subject to the foregoing and to the terms and conditions of the Offer and this AgreementOffer, Sub shallthe Purchaser agrees to pay, and Parent shall cause Sub toas promptly as reasonably practicable after the expiration of the Offer, accept for payment, purchase and pay for all Shares validly properly tendered and not withdrawn pursuant to the Offer as soon as practicable after that the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes Purchaser is obligated to accept for payment, purchase and pay for pursuant to the Offerpurchase.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall the Purchaser will file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer. The Schedule 14D-1, which shall include -------------- together with the related offer to purchase, purchase and the form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary transmittal, are hereinafter collectively referred to as the "Offer documents (collectively, together with any amendments and supplements thereto, the “Offer ----- Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act". Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel a --------- reasonable opportunity to review the Offer Documents prior to the filing of the Offer Documents with the SEC or to the dissemination of the Offer Documents to the stockholders of the Company. Parent and the Purchaser will furnish the Company and its counsel in writing with any comments or communications, whether written or oral, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
Sources: Merger Agreement (Dynatech Corp)
The Offer. (ai) Provided that this Merger Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred or be existing, as soon as practicable (but in no event later than five business days from the public announcement of the terms of this Merger Agreement) the Offerors shall commence the Offer. The initial expiration date of the Offer shall be the twentieth business day from and be continuing after the date the Offer is commenced (and not waived by Parent or Sub in their sole discretionthe "Initial Expiration Date"), and the .
(ii) The obligation of Sub the Offerors to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the following conditions: (or waiver by Parent or Sub in their sole discretion (but subject A) that there be validly tendered and not withdrawn prior to the next sentenceexpiration of the Offer that number of Shares which, when taken together with all Shares owned by the Offerors, represents at least ninety percent of the then outstanding Shares on a fully-diluted basis (the "Minimum Condition"), and (B) of the conditions set forth in such Annex A. Sub A hereto (collectively, the "Additional Offer Conditions," and together with the Minimum Condition, the "Offer Conditions"), any of which Additional Offer Conditions may be waived by the Offerors in their sole discretion.
(iii) The Offerors expressly reserves reserve the right to waive any conditions amend or make changes to the Offer or change the terms and conditions of the Offer except Offer; provided, however, that, without the prior written consent of the CompanyCompany (expressed in a resolution adopted by both the Special Committee and the Board), Sub may the Offerors shall not waive the condition in clause (iv) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases decrease the Offer Price payable in the Offer, (ii) changes or change the form of consideration to be paid in the Offer, (iiiw) reduces the maximum number of Shares to be purchased in the Offer waive or the minimum number of Shares contemplated by modify the Minimum Condition, (ivx) imposes decrease the number of Shares sought in the Offer, (y) impose any additional conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies from the conditions set forth in such Annex A Offer Conditions, or (vz) amends any other term of otherwise amend the Offer in a manner adverse to that would adversely affect the holders of Shares. Subject to The Company agrees that no Shares owned by the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept Company for payment, purchase and pay for all Shares validly its account will be tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided . Notwithstanding anything in this Agreement, Merger Agreement to the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub maycontrary, without the consent of the Company, (i) the Offerors shall have the right to extend the Offer on one beyond the Initial Expiration Date in the following events: (1) from time to time if, at the Initial Expiration Date (or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, if applicable), any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend conditions to the Offer have not been satisfied or waived; (2) for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time Offer or subsequent expiration time related any period required by applicable Law (as hereinafter defined); or (3) pursuant to an extension of amendment to the OfferOffer providing for a "subsequent offering period" to the extent permitted under, including an extension pursuant and in compliance with, Rule 14d-11 under the Exchange; provided, that notwithstanding anything to this sentencethe contrary, if any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has are not been satisfied (or waived in accordance with this Agreement), thenor, if requested by applicable, waived on any scheduled expiration date of the CompanyOffer, Sub shall, and Parent the Offerors shall cause Sub to, be required to extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) daysof 10 business days and, in which case if at the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) end of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If such 10 business day period all of the conditions to the Offer are still not satisfied or or, if applicable, waived, but an additional period of 10 business days; provided further, that, without the number consent of Shares validly tendered the Company (expressed in a resolution adopted by both the Special Committee and the Board), the Offerors shall not withdrawnextend the Offer beyond the date that is 50 business days from the date on which the Offer was commenced.
(iv) Following the satisfaction or waiver of the Offer Conditions, together Purchaser shall accept for payment, in accordance with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time terms of the Offer, Sub all Shares validly tendered pursuant to the Offer and not withdrawn as soon as it is permitted to do so pursuant to applicable Law. On or prior to the dates that Purchaser (or, in the case of the Merger, the Surviving Corporation) becomes obligated to accept for payment and pay for Shares pursuant to the Offer and Merger, ▇▇. ▇▇▇▇▇▇▇ shall provide, or cause to be provided, to Purchaser (or, in the case of the Merger, the Surviving Corporation) the funds necessary to pay for all Shares that Purchaser (or, in the case of the Merger, the Surviving Corporation) becomes so obligated to accept for payment and pay for pursuant to the Offer and Merger, as the case may (and if the Company so requests Sub be. The Offer Price shall, and Parent shall cause Sub to) provide a subsequent offering period subject to any required withholding of Taxes (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act andas defined below), if applicable and be net to the extent permitted under such Rule 14d-11stockholder in cash without interest and less any required withholding taxes, thereafter extend such subsequent offering periodupon the terms and subject to the conditions of the Offer.
(db) As soon as practicable on the date the Offer is commenced, Parent and Sub The Offerors shall file with the SEC on the date that the Offer is commenced a Tender Offer Statement on Schedule TO (together with respect to any supplements or amendments thereto, the Offer"Schedule TO") which will contain, which shall include among other things, the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any supplements or amendments and supplements thereto, the “"Offer Documents”"), and a Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the Offer which shall be filed as a part of the Schedule TO (the "Offeror Schedule 13E-3"). The Offer Documents will and Offeror Schedule 13E-3 shall comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable appli- cable federal securities Laws. Parent and Sublaws and, on the one handdate filed with the SEC and, and the Companyif applicable, on the other handdate first published, agree sent or given to promptly correct the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Offerors with respect to information provided supplied by it the Special Committee in writing for use inclusion in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable LawDocuments. Sub The Offerors further agrees agree to take all steps necessary to cause the Offer Documents and Offeror Schedule 13E-3 to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Offerors agree promptly to correct any information provided by them or it for use in the Offer Documents or Offeror Schedule 13E-3 if and to the extent that it shall have become false and misleading in any material respect and the Offerors further agree to take all steps necessary to cause the Offer Documents or Offeror Schedule 13E-3 as so corrected to be filed with the SEC and to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company Special Committee and its counsel shall be given a reasonable the opportunity to review the Schedule TO and comment on the Offer Documents Offeror Schedule 13E-3 before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, Parent and Sub the Offerors agree to provide the Company Special Committee and its counsel with any comments or communications, whether written or oral, other communications that Parent, Sub they or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offeror Schedule 13E-3 promptly after the receipt of such comments or other communications.
(c) The Offerors agree to provide the Special Committee and its counsel with any comments or other communications that either of them or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly or Offeror Schedule 13E-3 after Parent’s or Sub’s, as the case may be, receipt of such comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate this Agreement shall not have been terminated pursuant to Article 8, as promptly as practicable after the date hereof, but in accordance with Section 8.1no event later than the later of (A) fifteen Business Days following the date of this Agreement and (B) five Business Days following the date of satisfaction or waiver by Buyer and the Company of the condition set forth under Part 1 of Annex I hereto (the “Pre-Launch Condition”), Sub Buyer shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer as promptly as practicable after Offer. The Pre-Launch Condition is for the date hereof benefit of both Buyer and the Company and may be waived only by the Company and Buyer jointly (but not later than either in whole or in part) by written agreement. No party may invoke the fifth (5th) Business Day from and including Pre-Launch Condition if the date non-satisfaction of initial public announcement such condition is caused by a breach of that party of any of its obligations under this Agreement). The obligation obligations of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Buyer to, and the obligation of Sub Parent to cause Buyer to, accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)extent permitted under this Agreement) of the conditions set forth in such Part 2 of Annex A. Sub I hereto (the “Offer Conditions”). The date on which Buyer commences the Offer is referred to as the “Offer Commencement Date”.
(b) Buyer expressly reserves the right at any time to, its sole discretion, waive, in whole or in part, any of the Offer Conditions and to waive make any change in the terms of or conditions to the Offer or change the terms of the Offer except Offer; provided that, without the prior written consent of the Company, Sub may not waive the condition in clause Buyer shall not:
(i) of waive or change the Minimum Condition (as defined in Annex A (the “Minimum Condition”) or the condition in clause I);
(ii) or decrease the Offer Consideration;
(iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, ;
(iiiiv) reduces decrease the maximum number of Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or Offer;
(v) amends extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any other term of the Offer Conditions or terms of the Offer in a manner adverse to the holders of the Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(bc) Unless extended as provided in this Agreement, the Offer shall expire at 12:00 midnight (New York City time) 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 (such time, the “Initial Expiration Time”) that is twenty (20) Business Days after ” or such time and any subsequent time to which the commencement expiration of the Offer (determined pursuant to Rule 14d-1(g)(3) under is extended in accordance with the Exchange Actterms of this Agreement, the “Expiration Time”). Sub maySubject to the provisions of Article 8, without the consent if any of the CompanyOffer Conditions is not satisfied or waived at the Initial Expiration Time or at any other Expiration Time of the Offer, Buyer shall extend the Offer (the length of such extension period to be determined by Parent or Buyer, subject to clauses (i)-(iii) below) from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that (i) Buyer shall not be required to extend the Offer on one or more occasions for any period not exceeding ten beyond the End Date, (10ii) Business Days for any extension, if on any then-scheduled expiration date no such individual extension of the Offer any shall be for a period of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer existmore than ten Business Days, and (iiiii) Buyer shall not be required to extend the Offer at any time that Parent or Buyer is permitted to terminate this Agreement. Buyer shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or SEC, the staff thereof or the NASDAQ applicable to the OfferOffer or as may be required by any other Governmental Authority; provided, that Buyer shall not be required to extend the Offer to a date later than the End Date. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase Buyer shall (and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent Documents shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub toindicate) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than five nor more than twenty Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act and, if applicable and 1934 Act). The Offer may not be terminated prior to the extent permitted Expiration Time (as the same may be extended pursuant to this Section 2.01) unless this Agreement is validly terminated pursuant to Section
8.01. If this Agreement is validly terminated pursuant to Section 8.01, Buyer shall promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Buyer prior to the acceptance for payment and payment for Shares tendered in the Offer, Buyer shall promptly return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof. Nothing in this Section 2.01(c) shall affect any termination rights under such Rule 14d-11, thereafter extend such subsequent offering periodArticle 8.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Buyer 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 (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment and paid for under the Offer, the “Closing Date” and the acceptance for payment and payment for Shares on the Closing Date, the “Closing”). The Cash Consideration payable in respect of each Share pursuant to the preceding sentence shall be paid net of any applicable tax withholding with respect to the Offer Consideration pursuant to Section 2.09 to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement.
(e) As soon as practicable on the date the Offer is commencedCommencement Date, Parent and Sub Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include the offer summary term sheet required thereby and, as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent ) and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as to the extent required by applicable United States federal securities Lawslaws and any other Applicable Law. The Company shall promptly furnish to Parent and SubBuyer all information concerning the Company required by the 1934 Act to be set forth in the Offer Documents. Each of Parent, on the one hand, Buyer and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees to take all steps necessary Parent and Buyer shall use their reasonable best efforts to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares as Shares, in each case to the extent required by applicable United States federal securities Lawslaws and any other Applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Buyer shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Buyer shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or communications. The Company other communications and its counsel shall be given (ii) a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Buyer to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration be given), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the SEC or other Governmental Authorities to all reasonable additions, deletions or changes suggested thereto the extent such participation is permitted by the Company and its counselSEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses Section (v)(aa) or through (v)(bi) of Annex A attached hereto and made a part hereof (“Annex A”) shall have occurred and be continuing (and shall not have been waived by Parent or the Merger Sub), the Merger Sub in their sole discretion)shall, and the Parent shall cause the Merger Sub to, commence (within the meaning of Rule 14d-2 of the Exchange Act (as defined in Section 2.9(a)(ii))) the Offer as promptly as reasonably practicable after the date hereof. The obligation of the Merger Sub to accept for payment, purchase payment and pay for the Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the then outstanding Shares on a fully-diluted basis (taking into account all Shares issued and outstanding as of the expiration of the Offer and all additional Shares that would be issued and outstanding if all vested options, warrants or rights to purchase Shares at a price per Share less than the Offer Consideration were exercised) (the “Minimum Condition”) and to the satisfaction or waiver by Parent or the Merger Sub of the other conditions set forth in their sole discretion Annex A (but subject to the next sentence)) of Minimum Condition and the conditions set forth in such Annex A. A collectively, the “Offer Conditions”). The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 3.1(a)) will be tendered to the Merger Sub pursuant to the Offer. The Merger Sub expressly reserves the right to waive in whole or in part any conditions to of the Offer or change Conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer except thatOffer; provided, however, that no change may be made without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made Company which (i) decreases the Offer Price price per Share payable in the Offer, (ii) reduces the maximum number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A A, waives or (v) amends changes the Minimum Condition or makes any other term of the Offer change in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer that is in any manner adverse to the holders of Shares or, except as provided below, extends the Offer. Subject to the terms of the Offer and this AgreementAgreement and the satisfaction of the Minimum Condition and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A as of any expiration date of the Offer, the Merger Sub shall, and Parent shall cause Sub to, accept for payment, purchase payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the it is permitted to do so under applicable Legal Requirements (as defined in Section 3.2(d)). The scheduled expiration date of the Offer shall initially be 20 Business Days (as defined in Section 9.3(e)) following the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant counting for such purposes the day the Offer is commenced as the first day of such period), and the Offer shall be extended until such time as the Offer Conditions are satisfied or, to Rule 14d-1(g)(3the extent permitted by this Agreement, waived; provided, however, that the scheduled expiration date of the Offer shall not be extended beyond 75 calendar days following the date of commencement of the Offer (counting for such purposes the day the Offer is commenced as the first day of such period) under without the Exchange Actmutual written consent of the Company and the Merger Sub (such date as may be so extended, the “Outside Offer Date”). Notwithstanding the foregoing, the Merger Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or United States Securities and Exchange Commission (the “SEC”), the staff thereof or the Nasdaq National Market (“NASDAQ”) applicable to the Offer. If, at Offer (but in no event beyond the Initial Expiration Time Outside Offer Date) or (ii) provide for one or more “subsequent expiration time related offering periods” of up to an extension of additional 20 Business Days in the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived aggregate in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held extent permitted by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable Act. Parent and Merger Sub shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that Parent and Merger Sub terminate this Agreement pursuant to Section 8.1. At the time that the Merger Sub becomes obligated to accept for payment and pay for Shares pursuant to the extent permitted under such Rule 14d-11Offer, thereafter extend such subsequent offering periodthe Parent shall provide or cause to be provided to the Merger Sub the funds necessary to pay for all Shares that the Merger Sub becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer Consideration shall, subject to any required withholding of Taxes (as defined in Section 9.3(h)), be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(db) As soon as practicable on On the date of the Offer is commencedcommencement of the Offer, Parent and the Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all exhibits, amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall include the contain or incorporate by reference an offer to purchase, form purchase and forms of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any all amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and the Merger Sub shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Lawslaws. The Parent and the Merger Sub, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and the Merger Sub further agrees to take all steps necessary to will cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws and the DGCL. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, the Parent and the Merger Sub agree to provide the Company and its counsel with any comments or communicationscomments, whether written or oral, that Parent, the Parent or the Merger Sub or either of their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Schedule TO promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The and to consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to any responses to such comments or communications, (and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by provide the Company and its counselcounsel with copies of any such written response and telephonic notification of any such verbal response). If the Offer is terminated or withdrawn by the Merger Sub, the Parent and the Merger Sub shall promptly use their respective best efforts to cause the Paying Agent to cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as defined in Section 2.7(a)).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.01 and nothing shall have occurred that would render any of the conditions set forth in Annex A hereto incapable of being satisfied, Sub as promptly as practicable (but in no event later that five (5) business days after the date of this Agreement), Purchaser shall commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") an offer to purchase for cash (the "Offer") any and all of the Exchange Actissued and outstanding shares of Common Stock (the "Shares") at a price of $8.79 per Share, net to the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement seller in cash, without interest. For purposes of this Agreement), the term "Transaction Consideration" shall mean $8.79 per Share in cash or any higher price as shall be paid in respect of the Shares in the Offer. The obligation obligations of Sub Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject to only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive A hereto (any conditions or all of which may, subject to the Offer provisions hereof, be waived by Parent or change the terms of the Offer except thatPurchaser, without subject to applicable law). Without the prior written consent of the Company, Sub may Purchaser shall not waive the condition in clause (i) of Annex A (decrease the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferTransaction Consideration with respect to any Shares, (ii) changes decrease the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or Offer, (iii) change the minimum number form of Shares contemplated by consideration payable in the Minimum ConditionOffer, (iv) imposes add to or change the conditions to the Offer set forth in addition Annex A, (v) waive the Minimum Condition (as defined in Annex A) or (vi) make any other change in the terms or conditions of the Offer. Parent and Purchaser expressly reserve the right to those waive any condition (other than the Minimum Condition) specified in Annex A or to increase the Transaction Consideration. Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if the conditions set forth in Annex A hereto or which are not satisfied or, to the extent permitted hereby, waived by Purchaser as of the date the Offer would otherwise modifies have expired, then, except to the extent that such conditions set forth in such Annex A or (v) amends any other term are incapable of being satisfied, Purchaser will extend the Offer from time to time until the earlier of the consummation of the Offer in a manner adverse to or the holders date which is twenty (20) business days from the original expiration date of Sharesthe Offer (such date, the "Final Date"). Subject Purchaser shall, subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toOffer, accept for payment, purchase and pay for all payment Shares validly tendered and not withdrawn pursuant as soon as it is legally permitted to do so under applicable law; provided, however, that Purchaser shall be entitled to extend the Offer one or more times beyond the Final Date for an aggregate period of up to ten (10) business days if on the Final Date the conditions to the Offer as soon as practicable after the expiration set forth in Annex A have been satisfied or waived but there shall not have been tendered that number of Shares which would equal at least ninety percent (90%) of the Offer (the date of acceptance for payment, the “Acceptance Date” issued and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j)then outstanding Shares. Parent Purchaser shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept consummate the Offer immediately upon reaching such ninety percent (90%) threshold. Such extended date shall then be the Final Date for paymentpurposes of this Agreement. The Company agrees that it will not tender, purchase and pay for will not permit any of its subsidiaries to tender, any Shares held by it or any such subsidiary pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses Section (v)(aa) or through (v)(bi) of Annex A attached hereto and made a part hereof ("Annex A") shall have occurred and be continuing (and shall not have been waived by Parent or the Merger Sub), the Merger Sub in their sole discretion)shall, and the Parent shall cause the Merger Sub to, commence (within the meaning of Rule 14d-2 of the Exchange Act (as defined in Section 2.9(a)(ii))) the Offer as promptly as reasonably practicable after the date hereof. The obligation of the Merger Sub to accept for payment, purchase payment and pay for the Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the then outstanding Shares on a fully-diluted basis (taking into account all Shares issued and outstanding as of the expiration of the Offer and all additional Shares that would be issued and outstanding if all vested options, warrants or rights to purchase Shares at a price per Share less than the Offer Consideration were exercised) (the "Minimum Condition") and to the satisfaction or waiver by Parent or the Merger Sub of the other conditions set forth in their sole discretion Annex A (but subject to the next sentence)) of Minimum Condition and the conditions set forth in such Annex A. A collectively, the "Offer Conditions"). The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 3.1(a)) will be tendered to the Merger Sub pursuant to the Offer. The Merger Sub expressly reserves the right to waive in whole or in part any conditions to of the Offer or change Conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer except thatOffer; provided, however, that no change may be made without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made Company which (i) decreases the Offer Price price per Share payable in the Offer, (ii) reduces the maximum number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A A, waives or (v) amends changes the Minimum Condition or makes any other term of the Offer change in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer that is in any manner adverse to the holders of Shares or, except as provided below, extends the Offer. Subject to the terms of the Offer and this AgreementAgreement and the satisfaction of the Minimum Condition and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A as of any expiration date of the Offer, the Merger Sub shall, and Parent shall cause Sub to, accept for payment, purchase payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the it is permitted to do so under applicable Legal Requirements (as defined in Section 3.2(d)). The scheduled expiration date of the Offer shall initially be 20 Business Days (as defined in Section 9.3(e)) following the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant counting for such purposes the day the Offer is commenced as the first day of such period), and the Offer shall be extended until such time as the Offer Conditions are satisfied or, to Rule 14d-1(g)(3the extent permitted by this Agreement, waived; provided, however, that the scheduled expiration date of the Offer shall not be extended beyond 75 calendar days following the date of commencement of the Offer (counting for such purposes the day the Offer is commenced as the first day of such period) under without the Exchange Actmutual written consent of the Company and the Merger Sub (such date as may be so extended, the "Outside Offer Date"). Notwithstanding the foregoing, the Merger Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or United States Securities and Exchange Commission (the "SEC"), the staff thereof or the Nasdaq National Market ("NASDAQ") applicable to the Offer. If, at Offer (but in no event beyond the Initial Expiration Time Outside Offer Date) or (ii) provide for one or more "subsequent expiration time related offering periods" of up to an extension of additional 20 Business Days in the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived aggregate in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held extent permitted by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable Act. Parent and Merger Sub shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that Parent and Merger Sub terminate this Agreement pursuant to Section 8.1. At the time that the Merger Sub becomes obligated to accept for payment and pay for Shares pursuant to the extent permitted under such Rule 14d-11Offer, thereafter extend such subsequent offering periodthe Parent shall provide or cause to be provided to the Merger Sub the funds necessary to pay for all Shares that the Merger Sub becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer Consideration shall, subject to any required withholding of Taxes (as defined in Section 9.3(h)), be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(db) As soon as practicable on On the date of the Offer is commencedcommencement of the Offer, Parent and the Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all exhibits, amendments and supplements thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall include the contain or incorporate by reference an offer to purchase, form purchase and forms of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any all amendments and supplements thereto, the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and the Merger Sub shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Lawslaws. The Parent and the Merger Sub, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and the Merger Sub further agrees to take all steps necessary to will cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws and the DGCL. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, the Parent and the Merger Sub agree to provide the Company and its counsel with any comments or communicationscomments, whether written or oral, that Parent, the Parent or the Merger Sub or either of their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Schedule TO promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The and to consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to any responses to such comments or communications, (and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by provide the Company and its counselcounsel with copies of any such written response and telephonic notification of any such verbal response). If the Offer is terminated or withdrawn by the Merger Sub, the Parent and the Merger Sub shall promptly use their respective best efforts to cause the Paying Agent to cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as defined in Section 2.7(a)).
Appears in 1 contract
Sources: Merger Agreement (Cgi Group Inc)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) a failure to satisfy any of the Exchange Act) the Offer conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof (hereof, but not in no event later than five business days following the fifth (5th) Business Day from and including the date of initial public announcement of the terms of this Agreement, commence an offer (the "Offer") to purchase all of the outstanding shares of common stock, par value $.01 per share (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company at a price of $30.50 per Share (including such associated Rights), net to the seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer there shall be subject only to the satisfaction (or waiver by Parent or Sub validly tendered in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change accordance with the terms of the Offer except prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. Parent and Merger Subsidiary expressly reserve the right to waive the conditions to the Offer; provided that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I, changes or which otherwise modifies waives the conditions Minimum Condition, extends the Offer (except as set forth in such Annex A the following sentence), or (v) amends makes any other term of change to any condition to the Offer set forth in a manner Annex I which is adverse to the holders of Shares. Subject to the terms and conditions of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Sub shall, and Parent Merger Subsidiary shall cause Sub to, accept for payment, purchase and pay 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 (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all such Shares promptly after acceptance; provided that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) Merger Subsidiary may extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionif, if on any then-at the scheduled expiration date of the Offer or any extension thereof any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied, until such time as such event conditions are satisfied or events shall no longer existwaived, and (ii) Merger Subsidiary may extend the Offer for any a further period required by any rule, regulation, interpretation or position of time of not more than 20 business days to meet the SEC or the staff thereof applicable objective (which is not a condition to the Offer. If) that there be validly tendered, at in accordance with the Initial Expiration Time or subsequent expiration time related to an extension terms of the Offer, including an extension pursuant prior to this sentence, any the expiration date of the conditions Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Fully Diluted Shares. Subject to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), thenSection 9.1, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions condition set forth in clause (v)(b) or (v)(cii) of the first paragraph of Annex A I is not satisfied as of the date the Offer would otherwise have not then been satisfied or waived in accordance with this Agreement expired, Merger Subsidiary shall extend the Offer until the earlier of (other than any such conditions i) the date that are not so satisfied or waived under circumstances in which is 30 days after the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by first scheduled expiration date and (ii) the Company through date the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions condition set forth in clause (v)(b) or (v)(cii) of the first paragraph of Annex A are I is satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC (defined below in Section 4.1(a)) a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, Offer which shall include will contain the offer to purchase, purchase and form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent ") and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities LawsShares. Parent and SubParent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are Schedule 14D-1 prior to its being filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated pursuant to Section 7.1 and none of the events set forth in accordance with Section 8.1clause (iii) of Annex I shall have occurred or be existing, Sub Purchaser shall, and Parent shall cause Purchaser to, promptly (but no later than five (5) business days) following the public announcement of the execution of this Agreement commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence at the Offer Price.
(b) The obligations of Purchaser to consummate the Offer and to accept for payment and pay for any of the Shares tendered shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth on Annex I, including that a minimum of sixty-seven percent (67%) of the Shares outstanding on a fully diluted basis (including for purposes of such calculation all Shares issuable upon the cash exercise of all vested and unvested stock options, warrants and conversion of convertible securities or other rights to purchase or acquire Shares) being validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"). The ----------------- per Share amount shall be net to the seller in such Annex A. Sub cash, upon the terms and subject to the conditions of the Offer and subject to reduction for any applicable federal back-up or other applicable withholding or stock transfer taxes. The Offer shall remain open until 12:00 Midnight, New York City time, on the date that is twenty (20) business days following the commencement of the Offer; which shall be the "Expiration Date," unless Purchaser extends the Offer as permitted ---------------- by this Agreement, in which case the "Expiration Date" means the latest time and --------------- date to which the Offer is extended.
(c) Purchaser expressly reserves the right in its sole discretion to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive (other than the condition set forth in clause (i) of Annex A (unless agreed to by the “Minimum Condition”) or the condition in clause (ii) Company or (iiiiii)(E) of Annex AI), and no change in to increase the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) to extend the duration of the Offer, or to make any other changes in the form terms and conditions of consideration to the Offer, provided, however, -------- ------- that no such change may be paid made which decreases the price per Share payable in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term material terms of the Offer in a manner materially adverse to the holders of Shares. Subject to the terms Company's shareholders, and conditions of provided, further, that the Offer and this Agreementmay not, Sub shall-------- ------- without the Company's prior written consent, and Parent shall cause Sub tobe extended beyond the Expiration Date. Notwithstanding the foregoing, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company but upon notification of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant --- to the Offer has not been satisfied and (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(bii) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide make available a subsequent offering period (a “Subsequent Offering Period”) in accordance with within the meaning of Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodAct) which shall not exceed ten (10) business days.
(d) As soon as practicable on The Offer shall be made by means of an offer to purchase (the date "Offer ----- to Purchase") containing the Offer is commencedterms set forth in this Agreement and the ----------- conditions set forth in Annex I. Concurrently with the commencement of the Offer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO reflecting the Offer (together with respect all exhibits, amendments and supplements thereto, the "Schedule TO"). Upon the terms and subject to the Offer----------- conditions of the Offer (including, which shall include if the offer Offer is extended or amended, the terms and conditions of any such extension or amendment), Purchaser will purchase by accepting for payment and will pay for Shares validly tendered and not properly withdrawn, as promptly as practicable after the Expiration Date. The Schedule TO will contain or will incorporate by reference the Offer to purchase, form Purchase (or portions thereof) and forms of the related letter of transmittal and form of notice of guaranteed delivery summary advertisements (which Schedule TO, Offer to Purchase and all other ancillary Offer documents (collectivelydocuments, together with any supplements or amendments and supplements thereto, are referred to herein collectively as the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubParent, on the one hand, --------------- Purchaser and the Company, on the other hand, Company agree promptly to promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment Offer Documents will, on the Offer Documents before they are filed date filed, comply in all material respects with the SEC or disseminated to holders all provisions of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselapplicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided that As promptly as reasonably practicable (and in any event within fifteen (15) Business Days after the date of this Agreement Agreement, as such period may be extended by Parent and the Purchaser if and to the extent the Company fails to satisfy its obligations pursuant to the Section 1.1(g)(iv)), the Purchaser shall not have been terminated in accordance with Section 8.1commence, Sub shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) , the Offer as promptly as practicable after to purchase all of the date hereof (but not later than outstanding Shares for cash at the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation of Sub to commence the Offer shall be subject only to the condition that none consummation of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Offer, and the obligation of Sub the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the satisfaction Expiration Date that number of Shares which, together with the number of Shares (or waiver if any) then owned by Parent or Sub in their sole discretion any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, represents at least a majority of the Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company Table of Contents then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but subject not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the next sentence)extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thatguarantee) (collectively, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause and (ii) the satisfaction, or waiver by the Purchaser (iiito the extent permitted in Annex I), of each of the other conditions and requirements set forth in Annex I. Subject to Annex I, the conditions and requirements to the Offer set forth in this Section 1.1 and Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition or may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex AI), of each of the other conditions and requirements set forth in Annex I, the Purchaser shall, and no change Parent shall cause the Purchaser to, upon the first Expiration Date (as it may be extended in accordance with Section 1.1(e)) upon which such conditions are satisfied or waived, cause the Acceptance Time to occur, and the Purchaser shall, and the Parent shall cause the Purchaser to, pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer may be made which as promptly as practicable (iand in any event not more than three (3) decreases Business Days) following the Acceptance Time. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, which approval may be withheld in Company’s sole discretion, the Purchaser shall not (i) decrease the Offer Price, (ii) changes change the form of consideration to be paid payable in the OfferOffer (other than adding consideration), (iii) reduces reduce the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to amend or waive the Minimum Condition or the condition set forth in clause (b) of Annex I, (v) impose any condition or requirement on the Offer in addition to other than those set forth in Annex A hereto or which otherwise modifies I, (vi) except as provided in Section 1.1(e), extend the conditions set forth in such Annex A Offer or (vvii) amends any other term of otherwise amend the Offer in a any manner that is adverse to the holders holder of Shares. Subject Notwithstanding anything to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided contrary in this Agreement, the Offer Price shall expire on be adjusted appropriately to reflect the date effect of any stock split, reverse stock split, stock dividend (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement including any dividend or distribution of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreementsecurities convertible into Shares), thencash dividend, if requested by the Companyreorganization, Sub shallrecapitalization, and Parent shall cause Sub toreclassification, extend the Offer through such time as the Company may specifycombination, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any exchange of the conditions set forth in clause (v)(b) shares or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO like change with respect to the OfferShares, which shall include occurring on or after the offer date of this Agreement and prior to purchasethe Acceptance Time, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause such adjustment to the Offer Documents Price shall provide to be disseminated to the holders of Shares the same economic effect as required contemplated by applicable federal securities Laws. Parent and Subthis Agreement prior to such action; provided, on that nothing in this sentence shall be construed to permit 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 applicable Law. Sub further agrees Company 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 as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff action with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto securities that is not permitted by the Company and its counselterms of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Integrated Device Technology Inc)
The Offer. (a) Provided that this Agreement shall not ------------- --------- have been terminated in accordance with Section 8.1Article IX, Sub shall commence (within unless otherwise agreed by Parent and the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not Company, no later than three Business Days following effectiveness of a Registration Statement on Form S-4 (together with any amendments or supplements thereto, the fifth (5th"Offer Registration Statement") Business Day from and including the date of initial public announcement of this Agreement). The obligation of Parent ---------------------------- shall cause Merger Sub to commence an offer (the "Offer") to purchase all of the ---------- outstanding shares of Company Common Stock at a price for each share of Company Common Stock of (1) $29.60, net to the seller in cash, and (2) a fraction of a share of Parent Common Stock equal to the Exchange Ratio. The Offer shall be subject only to (1) the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses (v)(a) or (v)(b) Offer, prior to the expiration date of Annex A hereto shall have occurred and be continuing (the Offer and not waived withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock then owned by Parent or Sub in their sole discretion)and/or Merger Sub, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) represents at least two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition") and (2) the other ----------------- conditions set forth in such Annex A. I hereto. Merger Sub expressly reserves shall have the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except that, Offer; provided that (A) the Minimum Condition may not be -------- waived or reduced to less than two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis without the prior written consent of the Company, Sub may not waive the condition in clause Company and (iB) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases that changes the Offer Price form of consideration payable in the Offer, (ii) changes decreases the form of consideration to be paid payable in the Offer, (iii) reduces the maximum number of Shares shares of Company Common Stock to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I or which otherwise modifies the conditions set forth in such Annex A or (v) amends makes any other term of the Offer in a manner change which is adverse to the holders of SharesCompany Common Stock. Subject to Notwithstanding the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub mayforegoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) extend the Offer on for one or more occasions for any period periods (not exceeding ten (10) in excess of 10 Business Days for any extensioneach) but in no event ending later than the Termination Date if, if on any then-at the scheduled or extended expiration date of the Offer Offer, any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer existwaived, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at Offer or any period required by applicable law or (iii) for an aggregate period of not more than 10 Business Days beyond the Initial Expiration Time latest applicable date that would otherwise be permitted under clause (i) or subsequent expiration time related to an extension (ii) of the Offer, including an extension pursuant to this sentence, any if, as of the conditions to the obligation of Sub to accept for paymentsuch date, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are have been satisfied or waived, but the number of Shares shares of Company Common Stock validly tendered and not withdrawnwithdrawn pursuant to the Offer equals 80% or more, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute but less than 90%, of the number outstanding shares of Shares required Company Common Stock on a fully diluted basis. In the event that Merger Sub is unable to consummate the Offer on the initial scheduled expiration date due to the failure of the conditions to the Offer to be satisfied or waived, Parent shall cause Merger Sub to, unless this Agreement is terminated pursuant to Section 2.10 (assuming Article IX, extend the exercise of Offer and set a subsequent scheduled expiration date, and shall continue to so extend the Top-Up Option in full), then, Offer and set subsequent scheduled expiration dates until the Termination Date. Subject to the foregoing and upon the applicable expiration time terms and subject to the conditions of the Offer, Parent shall cause Merger Sub may 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 will announce the exact Exchange Ratio with respect to each share of Company Common Stock that is to be exchanged in the Offer by 9:00 a.m., New York City time, on the second Trading Day immediately preceding the Acceptance Date. Parent will make such announcement by issuing a press release to the Dow ▇▇▇▇▇ News Service.
(and if b) As soon as reasonably practicable on the Company so requests Sub date of commencement of the Offer, Parent shall, and Parent shall cause Merger Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and or supplements thereto, the “"Schedule TO"). As soon as reasonably practicable after ----------- the date hereof, Parent shall, and shall cause Merger Sub to, file the Offer Registration Statement (the Schedule TO, the Offer Registration Statement and such documents included therein pursuant to which the Offer will be made, the "Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents Company agree promptly to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any --------------- information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Parent shall, and Parent shall cause Merger Sub further agrees to take all steps necessary to cause the Schedule TO and the Offer Documents Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be, at such time as reasonably agreed by Parent and the Company, disseminated to holders of Shares shares of Company Common Stock, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are prior to their being filed with the SEC or disseminated to the holders of Sharesshares of Company Common Stock. Parent shall, and Parent and shall cause Merger Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel with any comments or communications, whether written or oral, that Parent, 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 Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The and shall provide the Company and its counsel shall be given a reasonable an opportunity to review any responses participate in the response of Parent or Merger Sub to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
Sources: Merger Agreement (Fort James Corp)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.1Annex I, Sub as promptly as practicable after the date hereof, Merger Subsidiary shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation of Sub to commence the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses Offer, prior to the scheduled expiration of the Offer (v)(aas it may be extended hereunder) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent or Sub in their sole discretion)Merger Subsidiary, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except thatOffer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer Condition may not be made which (i) decreases the Offer Price payable in the Offerwaived, (ii) no change may be made that changes the form of consideration to be paid in pursuant to the Offer, (iii) reduces decreases the maximum Offer Price or the number of Company Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I, and (iii) the conditions Offer may not be extended except as set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Sharesthis Section 2.01(a). Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) 20 Business Days after the commencement of the Offer (determined pursuant to Rule for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act)▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Sub may, without Merger Subsidiary shall extend the consent of the Company, Offer (i) extend if, at the Offer on one scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as conditions, (y) the reasonable determination by Parent that any such event condition to the Offer is not capable of being satisfied on or events shall no longer existprior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (z) the End Date, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Merger Subsidiary may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request provide one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act and, if applicable and 1934 Act. Subject to the extent permitted under such foregoing, including the requirements of Rule 14d-11, thereafter extend such subsequent offering periodand upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and pay for, as promptly as practicable after the final expiration of the Offer, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include the offer summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase, form Purchase and forms of the related letter of transmittal and form summary advertisement, if any, in respect of notice of guaranteed delivery and all other ancillary the Offer documents (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent , and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable federal securities Laws. laws or reasonably requested by Parent and SubMerger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Company Shares, in each case as and to the extent required by applicable U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Merger Subsidiary shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or other communications. The Company , and its counsel shall be given (B) a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
(c) Parent and Merger Subsidiary shall timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to all reasonable additions, deletions or changes suggested thereto the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Company Shares via the Offer Documents the information set forth in any such registration statement to the extent and within the time period required by Chapter 80B of the Company and its counselMinnesota Statutes.
Appears in 1 contract
Sources: Merger Agreement (Stellent Inc)
The Offer. (a) Provided that this Agreement shall has not have been terminated in accordance with Section 8.1Article VIII, as promptly as practicable after the date of this Agreement, but in no event more than ten (10) Business Days after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer; provided, however, that Merger Sub shall not be required to commence the Offer if the Company shall not be prepared to file the Schedule 14D-9 with the SEC substantially contemporaneously with Merger Sub’s filing of the Offer Documents with the SEC.
(b) Upon the terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of the Minimum Condition (as defined in Annex I) and the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the date hereof Expiration Date (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of as it may be extended in accordance with this AgreementSection 1.1). The obligation of Sub to commence , consummate the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred accordance with its terms and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and promptly thereafter pay for for, all Common Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The Offer shall be subject only made by means of an offer to purchase (the satisfaction (or waiver by Parent or Sub “Offer to Purchase”) in their sole discretion (but subject to accordance with the next sentence)) of the conditions terms set forth in such Annex A. this Agreement, the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Common Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions to of the Offer or change not inconsistent with the terms of the Offer except thatthis Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the CompanyCompany (which the Company may withhold in its sole discretion), Merger Sub may shall not waive (A) decrease the condition in clause Common Offer Price, (iB) change the form of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price consideration payable in the Offer, (iiC) changes the form of consideration to be paid in the Offer, (iii) reduces decrease the maximum number of Common Shares subject to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, Offer; (ivD) imposes impose conditions to the Offer in addition to those set forth in Annex A hereto the Offer Conditions, (E) amend, modify or which otherwise modifies the conditions set forth in such Annex A or (v) amends supplement any other term of the Offer Conditions, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner adverse other than as required or permitted by this Agreement. Parent and Merger Sub may waive the Minimum Condition only with the prior written consent of the Company (which the Company may withhold in its sole discretion). The Offer may not be terminated or withdrawn prior to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Expiration Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or unless this Agreement is terminated in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the OfferArticle VIII.
(bd) Unless extended as provided pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) at the end of the day on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer has been extended beyond the Initial Expiration Date pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (such Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”). .
(e) Merger Sub mayshall, without and Parent shall cause Merger Sub to, extend the consent of the Company, Offer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub shall extend the Offer on one or for successive periods of not more occasions for any period not exceeding than ten (10) Business Days for any extensioneach (as determined by Merger Sub), if on any then-scheduled expiration date or such other period as may be agreed by Parent and the Company, to permit the satisfaction of the such Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, Conditions; and (ii) Merger Sub shall extend the Offer for any the minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC or the its staff thereof applicable to the Offeror NASDAQ or its staff. IfNothing in this Section 1.1(e) shall (A) require Merger Sub to, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by without the Company, ’s prior written consent (which the Company may withhold in its sole discretion) Merger Sub shall, and Parent shall cause Sub not be permitted to, extend the Offer through such time as beyond the End Date or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Merger Sub shall extend the Offer in any manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Company (which the Company may specify, which time withhold in its sole discretion).
(f) The Common Offer Price shall be no later than adjusted proportionately to reflect the Termination Dateeffect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Shares or Preferred Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Common Offer Price shall provide to the holders of Common Shares the same economic effect as contemplated by this Agreement prior to such action; provided provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Merger Sub shall not be entitled terminate or withdraw the Offer prior to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement (other than any such conditions that are not so satisfied or waived under circumstances is terminated in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together accordance with the Sharesterms hereof, if any, held by Parent and then Merger Sub or any other direct or indirect wholly owned Subsidiary of Parent shall (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Merger Sub to) provide a subsequent offering period promptly (a “Subsequent Offering Period”and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer, and shall cause any depository acting on behalf of Merger Sub to return, in accordance with Rule 14d-11 under the Exchange Act andapplicable Law, if applicable and all tendered Common Shares to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodregistered holders thereof.
(dh) As soon promptly as practicable on the date of commencement of the Offer is commenced(within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include contain or incorporate by reference the offer Offer to purchase, Purchase and form of the related letter of transmittal and form of notice of guaranteed delivery summary advertisement, if any, and all any other ancillary Offer documents and instruments pursuant to which the Offer shall be made, and (ii) cause the Offer to Purchase and related documents to be disseminated to all holders of Common Shares. Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply ) filed by either Parent or Merger Sub with the SEC to comply, in all material respects respects, with the Exchange Act and other applicable provisions Law. Each of the Exchange Act. Parent and Parent, Merger Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to Company shall promptly correct any information provided by it or any of its Representatives for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and shall supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub further agrees shall use their best efforts to take all steps necessary to promptly cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to promptly be disseminated to holders of Shares Common Shares, in each case as and to the extent required by applicable federal securities LawsLaw. The Company shall promptly furnish or otherwise make available in writing to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company and the Company’s stockholders that is required by applicable Law or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed prior to the filing thereof with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Sub agree to provide the Company and its counsel with any comments or 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 Parent’s or Sub’s, as the case may be, receipt of such comments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or communications. The Company and its counsel staff with respect to the Offer Documents or the Offer.
(i) Parent shall cause to be given provided to Merger Sub on a reasonable opportunity timely basis all of the funds necessary to review purchase any responses Common Shares that Merger Sub becomes obligated to such comments or communicationspurchase pursuant to the Offer, and Parent and shall cause Merger Sub shall give due consideration to perform, on a timely basis, all reasonable additions, deletions or changes suggested thereto by the Company and its counselof Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ceres, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing, Sub as promptly as practicable, and, in any event, within seven business days of the date hereof, the Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer as promptly as practicable after to purchase for cash all Shares at the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation obligations of Sub the Purchaser to commence accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms expiration of the Offer except that, without the prior written consent that number of Shares which represents at least a majority of the Company, Sub may not waive the condition in clause (i) of Annex A Shares outstanding on a fully-diluted basis (the “Minimum Condition”) or the condition in clause and (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes other conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesI hereto. Subject to the terms prior satisfaction of the Minimum Condition and subject to the prior satisfaction or waiver by Parent or the Purchaser of the other conditions of the Offer and this Agreementset forth in Annex I hereto (it being understood that the Minimum Condition cannot be waived or modified without the consent of the Company), Sub the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and Parent shall cause Sub to, accept for payment, purchase payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable promptly after the expiration of the Offer (Offer, which shall initially be the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable 20th business day following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer Offer, provided, however, that (determined pursuant to Rule 14d-1(g)(3w) under if on the Exchange Act). Sub may, without the consent initial expiration date of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-subsequent scheduled expiration date of the Offer (as extended in accordance with this Agreement), all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such period as the Purchaser may determine until such conditions are waived or satisfied; provided, however, that, if, as of any scheduled expiration date of the Offer, (A) any of the events set forth in clauses (a),
(b) or (c) of Annex A I shall have occurred and be continuingcontinuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser) then, until subject to the right of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the Offer unless such time as conditions could not reasonably be expected to be waived or satisfied by the Outside Date or (B) any of the events set forth in clause (f) of Annex I (but only with respect to unintentional failures of such event representations and warranties to be true and correct) or events clause (g) of Annex I (but only with respect to non-willful breaches of, or failures to comply with, covenants and agreements) shall no longer existhave occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser), then, subject to the right of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the offer to a date that is not less than 30 days after Purchaser notified the Company of such event, (iix) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. If, at (y) if on the Initial Expiration Time or subsequent then scheduled expiration time related to an extension date of the Offer, including an extension pursuant to this sentence, any Offer there shall have been validly tendered and not withdrawn at least 80% but less than 90% of the conditions to Shares outstanding on a fully diluted basis, the obligation of Sub to accept for paymentPurchaser may, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub toits sole discretion, extend the Offer through such time as for an additional period of not more than 10 business days, and (z) the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Purchaser may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each provide a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent the Purchaser may increase the Offer Price and Sub agree extend the Offer to provide the Company extent required by law in connection with such increase, in each case in its sole discretion and its counsel any comments or communicationswithout the Company’s consent; provided, whether written or oralhowever, that Parent, Sub or their counsel may receive from time to time from neither Parent nor Purchaser shall otherwise modify the SEC or its staff with respect Offer in any manner adverse to the Offer Documents promptly after Parentholders of Shares without the Company’s or Sub’sconsent, except as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselspecifically permitted in this Agreement.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder (the "Exchange Act"), the Offer within five business days (as such term is defined in Rule 14e-1 under the Exchange ActAct (a 6 "Business Day")) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation Offer, for all of Sub to commence the Offer shall outstanding Shares, will be subject only to a number of Shares being validly tendered prior to the condition that none expiration of the events Offer and not withdrawn which would result in Purchaser's ownership of such number of Shares as represents at least a majority of the outstanding Shares of the Company on a fully diluted basis assuming exercise of all outstanding Options (as defined in Section 2.6), if any, of the Company (the "Minimum Condition") and satisfaction or waiver of the further conditions set forth in clauses Annex I, any of which conditions (v)(aincluding the Minimum Condition) may be waived in the sole discretion of Purchaser.
(b) Upon the terms and subject to the conditions of the Offer, Purchaser shall purchase all Shares which are validly tendered on or (v)(b) prior to the expiration of Annex A hereto shall have occurred and be continuing (the Offer and not waived by Parent timely withdrawn. Purchaser may, at any time, transfer or Sub in their sole discretion)assign to one or more corporations, and which are direct or indirect subsidiaries of Parent, the obligation right to purchase all or any portion of Sub to accept for payment, purchase and pay for the Shares tendered pursuant to the Offer Offer, but any such transfer or assignment shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) not relieve Purchaser of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to its obligations under the Offer or change prejudice the terms rights of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, tendering stockholders to receive payment for Shares properly tendered and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept accepted for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all The Offer shall remain open (except upon the occurrence of the conditions to events specified in Section 8.1(a), 8.1(c)(i), and 8.1(d)) until January 21, 1998 (the "Expiration Date"), unless Purchaser shall have extended the period of time for which the Offer are satisfied is open as may be required by this Agreement, or waivedapplicable law, but in which event the number of Shares validly tendered term "Expiration Date" shall mean the latest time and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of date at which the Offer, Sub may (and if the Company as so requests Sub shallextended by Purchaser, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and expire. On or prior to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which that shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent such Schedule and Sub all applicable Federal securities laws, and shall cause contain (including as an exhibit) or incorporate by reference the Offer Documents to be disseminated to holders (or portions thereof) and forms of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.related letter
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have previously been terminated in accordance with Section 8.17.1, Sub the Company has fulfilled its obligation to provide information to Parent and the Purchaser pursuant to Section 1.1(h) and the Company is prepared (in accordance with Section 1.2(b), to file the Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) on the same date as the Purchaser commences the Offer, the Purchaser shall, and Parent shall commence (cause the Purchaser to, within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable 10 Business Days after the date hereof (but not later than of the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement), commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligation of Sub the Purchaser to commence accept for payment or pay for any shares validly tendered in the Offer and not properly withdrawn shall be subject only solely to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that none number of Shares which, together with the events set forth in clauses (v)(a) or (v)(b) number of Annex A hereto shall have occurred and be continuing (and not waived Shares, if any, then owned of record by Parent or Sub in their sole discretionthe Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, voting power, represents at least a majority of the Shares then outstanding (determined on a Fully Diluted Basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a Fully Diluted Basis) and entitled to vote upon the adoption of this Agreement on the date Shares are accepted for payment (collectively, the “Minimum Condition”); and (ii) the satisfaction, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub the Purchaser in their sole discretion (but subject to the next sentence)) discretion, of the other conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those requirements set forth in Annex A hereto I.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or which otherwise modifies waiver by Parent or the Purchaser in their sole discretion, of the other conditions and requirements set forth in such Annex A or (v) amends any other term of I, the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub Purchaser shall, and Parent shall cause Sub the Purchaser to, accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable promptly after the expiration of the Offer Purchaser is legally permitted to do so under applicable Law (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Dateof such Shares, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub the Purchaser on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub the Purchaser becomes obligated to accept for payment, payment and purchase and pay for pursuant to the Offer. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and the Purchaser expressly reserve the right to increase the Offer Price, waive any condition to the Offer (except the Minimum Condition) or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify any of the other conditions and requirements to the Offer in a manner adverse to the holders of Shares, (vi) impose additional conditions to the Offer or (vii) extend the Expiration Date other than in accordance with this Agreement.
(d) Unless extended as provided in accordance with the terms of this Agreement, the Offer shall expire at 9:00 p.m. (Eastern time) on the date July 1, 2010 (the “Initial Expiration TimeDate”) that is twenty (20) Business Days after or, if the commencement of Initial Expiration Date has been extended in accordance with this Agreement, the date on which the Offer has been so extended (determined pursuant the Initial Expiration Date, or such later date to Rule 14d-1(g)(3which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) under Notwithstanding anything in this Agreement to the Exchange Act). Sub maycontrary, the Purchaser shall be permitted and required to extend the Offer from time to time only as follows (and the Purchaser and Parent shall not extend the Offer for any other reason without the prior written consent of the Company, ) (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer Expiration Date any of the events conditions to the Offer (including the Minimum Condition or the other conditions and requirements set forth in Annex A I) have not been satisfied or, to the extent permitted, waived by Parent or the Purchaser, then the Purchaser shall have occurred (and be continuingParent shall cause the Purchaser to) extend the Offer for successive periods of 10 Business Days each in order to permit the satisfaction of such condition or conditions or, until to the extent permitted, the waiver of such time as such event condition or events shall no longer existconditions, and (ii) the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(cf) If all of necessary to obtain sufficient Shares to reach the conditions Short Form Threshold (without regard to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming issuable upon the exercise of the Top-Up Option or Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in fullsettlement or satisfaction of such guarantee), thenthe Purchaser may, upon the applicable expiration time of the Offerin its sole discretion, Sub may provide for a “subsequent offering period” (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and Act. Subject to the extent permitted under terms and conditions of this Agreement and the Offer, the Purchaser shall, and Parent shall cause the Purchaser to, immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such Rule 14d-11, thereafter extend such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(dg) As soon as practicable on The Purchaser shall not terminate the date Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall, and Parent shall cause the Purchaser to terminate the Offer promptly. If the Offer is commencedterminated by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
(h) On the date of the commencement of the Offer, Parent and Sub the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include include, as exhibits: the offer Offer to purchasePurchase, a form of the related letter of transmittal and transmittal, a form of notice of guaranteed delivery summary advertisement and all other ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply Company shall promptly furnish to Parent all information concerning the Company that may be reasonably requested by Parent in all material respects connection with the applicable provisions of the Exchange Actany action contemplated by this Section 1.1(h). Parent and Sub shall the Purchaser agree to cause the Offer Documents to be disseminated to holders of Shares Shares, as and to the extent required by applicable federal securities Lawsthe Exchange Act, the SEC or its staff or The New York Stock Exchange (the “NYSE”). Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to correct promptly correct any information provided by it such party for use in the Offer Documents Documents, if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary , and Parent and the Purchaser agree to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawsthe Exchange Act. The No representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Except in connection with a disclosure regarding a Change of Board Recommendation or an Acquisition Proposal received by the Company, the Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents before they are filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, except in connection with a disclosure regarding a Change of Board Recommendation or an Acquisition Proposal received by the Company, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any comments or communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(i) The Offer Price shall be automatically adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to shares of Company Common Stock occurring or having a record date on or after the date of this Agreement and prior to the payment by the Purchaser for the Shares.
Appears in 1 contract
Sources: Merger Agreement (Sybase Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and or be continuing (and not waived by Parent existing, the Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of the Purchaser's intention to commence the Offer, which announcement shall occur on the date hereof or Sub in their sole discretion), and on the following day. The obligation of Sub the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (the "MINIMUM CONDITION") that Shares constituting at least 80% 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 also shall be subject to the satisfaction (or waiver by Parent or Sub of the other conditions set forth in their sole discretion (but subject Annex A hereto. In the event that Shares constituting at least 19.9% of the then outstanding Shares shall have been validly tendered and not withdrawn prior to the next sentence)) expiration of the Offer, and all the conditions set forth in Annex A thereto shall have been satisfied other than the Minimum Condition, the Purchaser may, at its option, purchase for the Per Share Amount any number of such Annex A. Sub Shares constituting in the aggregate no more than 19.9% of the then outstanding Shares, on a pro rata basis if a greater number of Shares shall have been tendered into the Offer by the holders thereof. The Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer except thatOffer; PROVIDED, HOWEVER, that no change may be made without the prior written consent of the Company, Sub may not waive Company that decreases the condition in clause (i) of Annex A (the “Minimum Condition”) or , that decreases the condition in clause (ii) or (iii) of Annex A, and no change price per Share payable in the Offer may be made which (i) decreases below the Offer Price payable in the OfferPer Share Amount, (ii) that changes the form of consideration to be paid in the Offer, (iii) that reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) that imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesOffer. Subject to the terms and conditions of the Offer and this Agreement(including, Sub shallwithout limitation, and Parent the Minimum Condition), the Purchaser shall cause Sub topay, accept for paymentas promptly as practicable after expiration of the Offer, purchase and pay for all Shares validly tendered and not withdrawn pursuant to withdrawn; PROVIDED that if on the Offer as soon as practicable initial scheduled expiration date (which will be twenty business days after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer) of the Offer, all the conditions to the Offer (determined pursuant have not been satisfied or waived, the Offer may be extended from time to Rule 14d-1(g)(3) under the Exchange Act). Sub maytime until January 4, 1999, without the consent of the Company. Notwithstanding the foregoing, (i) the Purchaser may not, without the prior written consent of the Company, extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable pursuant to the Offer. If, at foregoing sentence if the Initial Expiration Time or subsequent expiration time related failure to an extension of the Offer, including an extension pursuant to this sentence, satisfy any of the conditions to the obligation Offer was caused by or resulted from the failure of Sub the Parent or the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to perform in any material respect any material covenant or agreement of either of them contained in this Agreement or the Offer has not been satisfied (material breach by the Parent or waived the Purchaser of any material representation or warranty of either of them contained in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(cb) If all As soon as reasonably practicable on the date of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time commencement of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer, which Offer and the other Transactions (as hereinafter defined). The Schedule 14D-1 shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with Parent, the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, Purchaser and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the other Offer Documents before they are filed with the SEC or as so corrected to be disseminated to holders of Shares, in each case as and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto extent required by the Company and its counselapplicable federal securities laws.
Appears in 1 contract
Sources: Merger Agreement (Aquapenn Spring Water Company Inc)
The Offer. (a) Provided that this Agreement shall not have --------- been terminated in accordance with Section 8.18.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing, Sub as promptly as practicable, and, in any event, within seven (7) days of the date hereof, the Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as practicable after to purchase at ------------ the date hereof Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (but i) there being validly tendered and not later than withdrawn prior to the fifth expiration of the Offer that number of Shares which, together with the Shares then beneficially owned by Parent or the Purchaser (5th) Business Day from and including without giving effect to shares issuable pursuant to the date of initial public announcement of this Stock Option Agreement), represents at least a majority of the Shares outstanding on a fully- diluted basis (the "Minimum Condition") and (ii) the other conditions set forth ----------------- in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, the Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered pursuant to the Offer as soon as Purchaser is legally permitted to do so under applicable law. The obligation obligations of Sub the Purchaser to commence the Offer and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), Minimum Condition and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves I hereto. The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") that contains the terms ----------------- set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex I hereto. The Purchaser shall not amend or waive any the Minimum Condition and shall not decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer or change Offer, extend the terms offer beyond the date that is twenty (20) business days after commencement of the Offer (the "Initial Expiration Date"), except thatas set forth below, or amend any other ----------------------- condition of the Offer in any manner adverse to the holders of the Shares without the prior written consent of the Company, Sub may not waive the condition in clause Company (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration such consent to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated authorized by the Company Board of Directors or a duly authorized committee thereof). So long as this Agreement is in effect and the Minimum Condition, (iv) imposes Condition or any other conditions to the Offer in addition to those set forth in Annex A hereto I have not been satisfied or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreementwaived, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any for one or more periods of up to ten additional business days each (but in no event shall Purchaser be permitted to extend the expiration date of the events Offer beyond the sixtieth business day after the date of this Agreement). So long as this Agreement is in effect and the Minimum Condition and the other conditions to the Offer set forth in Annex A I have been satisfied or waived and such conditions shall have occurred and be continuingnot apply to any extension pursuant to this sentence, until such time as such event or events shall no longer existPurchaser may, and (ii) without the consent of the Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act Notwithstanding the foregoing, Purchaser may, without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. IfSubject to the terms and conditions of the Offer and this Agreement, at Purchaser shall accept for payment and pay for, in accordance with the Initial Expiration Time or subsequent expiration time related to an extension terms of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger withdrawn pursuant to Section 2.10 (assuming the exercise Offer promptly after the expiration of the Top-Up Option in full), then, upon Offer (subject to the applicable expiration time provisions of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act andAct, if applicable and to the extent permitted under applicable). In addition, the Purchaser may increase the Offer Price and extend the Offer to the extent required by law in connection with such Rule 14d-11increase, thereafter extend such subsequent offering periodin each case in its sole discretion and without Company's consent.
(db) As soon as practicable on the date the Offer is commenced, Parent and Sub the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC"), pursuant to Regulation M-A under the Exchange Act --- ("Regulation M-A"), a Tender Offer Statement on Schedule TO with respect to the Offer--------------- Offer (together with all amendments, which supplements and exhibits thereto, the "Schedule TO"). The Schedule TO shall include the offer summary term sheet required ----------- under Regulation M-A and, as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"). The Parent and the --------------- Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and the Purchaser agree to take all steps necessary to (i) ensure that the Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act, the rules and regulations thereunder and other applicable federal securities laws and, (ii) that the Offer Documents shall not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information furnished by the Company expressly for inclusion in the Offer Documents. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawlaw. Sub The Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel in writing with any comments or communicationscomments, whether written or oral, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s 's or Sub’sthe Purchaser's, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communicationscomments, and Parent and Sub shall give due consideration to all reasonable additions, deletions any written or changes suggested thereto by the Company and its counseloral responses thereto.
Appears in 1 contract
The Offer. (a) Provided that If (i) this Agreement shall has not have been terminated in accordance with Section 8.1, Sub (ii) none of the conditions set forth in Paragraphs (a) through (g) of Appendix A to this Agreement other than Paragraph (f) (with respect to the representations and warranties as of the Expiration Date) and Paragraph (g) (with respect to obligations to be performed or agreements or covenants to be performed or complied with after the commencement of the Offer) shall have occurred (unless waived by Parent in its sole discretion) and (iii) the Purchaser has received the Financing Letters then, within five Business Days following Purchaser's receipt of the Financing Letters (the "Offer Deadline"), Purchaser shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation of Sub to commence the Offer shall be subject only Subject to the condition that none Minimum Condition and subject to satisfaction or waiver of the events other conditions set forth in clauses (v)(a) or (v)(b) of Annex Appendix A hereto to this Agreement, Purchaser shall have occurred consummate the Offer in accordance with its terms and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer promptly after Purchaser is legally permitted to do so under Applicable Law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to Minimum Condition and the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves Appendix A to this Agreement and shall reflect, as appropriate, the right to waive any conditions to other terms set forth in this Agreement. Unless previously approved by the Offer or change the terms of the Offer except thatCompany in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) which decreases the Offer Price price per Share payable in the Offer, (ii) which changes the form of consideration to be paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex Appendix A hereto or which otherwise modifies the conditions set forth in such Annex Appendix A or in a manner adverse to the holders of Shares, (v) which amends any other term of the Offer in a manner inconsistent with this Agreement and adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after or (vi) which extends the expiration of the Offer beyond thirty (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (2030) Business Days after following the initial scheduled Expiration Date (the initial scheduled Expiration Date being 20 Business Days following the commencement of the Offer); provided, however, that notwithstanding the foregoing, subject to Section 8.1, if the conditions set forth in Appendix A are not satisfied or, to the extent permitted by this Agreement, waived, Purchaser will extend the Offer from time to time until the earlier of (determined pursuant i) the consummation of the Offer and (ii) thirty (30) Business Days in the aggregate following the initial Expiration Date of the Offer. In addition, Purchaser may increase the Offer Price, and the Offer may be extended to Rule 14d-1(g)(3) under the Exchange Act). Sub mayextent required by Applicable Law in connection with such increase, in each case without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, waived but the number of Shares validly tendered and but not withdrawn, together with the SharesShares held by Parent and Purchaser, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute is less than ninety percent (90%) of the then outstanding number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full)Shares, then, then upon the applicable expiration time of the OfferExpiration Date, Sub may (and if the Company so requests Sub Purchaser shall, and Parent shall cause Sub Purchaser to) , provide a subsequent offering period (a “for "Subsequent Offering Period”) Periods" as such term is defined in and in accordance with Rule 14d-11 under the Exchange Act andAct, if applicable for an aggregate period not to exceed twenty (20) Business Days (for all such extensions) and Purchaser shall, and Parent shall cause Purchaser to, (i) give the required notice of such extension, and (ii) immediately accept and promptly pay for all Shares tendered prior to the extent permitted under date of such Rule 14d-11, thereafter extend such subsequent offering periodextension.
(db) As soon as practicable on On the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer. The Schedule TO will include, which shall include as exhibits, the offer Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement.
(collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. c) Parent and Sub shall Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees to Purchaser will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on each of the Offer Documents before they are such Offer Document is filed with the SEC or disseminated to holders of the Shares, and as the case may be. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to Purchaser will provide the Company and its counsel in writing with any comments or other communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not ------------ --------- have been terminated in accordance with Section 8.1Article IX, Sub shall commence (within unless otherwise agreed by Parent and the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not Company, no later than three Business Days following effectiveness of a Registration Statement on Form S-4 (together with any amendments or supplements thereto, the fifth (5th"Offer Registration Statement") Business Day from and including the date of initial public announcement of this Agreement). The obligation of Parent ---------------------------- shall cause Merger Sub to commence an offer (the "Offer") to purchase all of the ----- outstanding shares of Company Common Stock at a price for each share of Company Common Stock of (1) $29.60, net to the seller in cash, and (2) a fraction of a share of Parent Common Stock equal to the Exchange Ratio. The Offer shall be subject only to (1) the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses (v)(a) or (v)(b) Offer, prior to the expiration date of Annex A hereto shall have occurred and be continuing (the Offer and not waived withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock then owned by Parent or Sub in their sole discretion)and/or Merger Sub, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) represents at least two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition") and (2) the other ----------------- conditions set forth in such Annex A. I hereto. Merger Sub expressly reserves shall have the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except that, Offer; provided that (A) the Minimum Condition may not be -------- waived or reduced to less than two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis without the prior written consent of the Company, Sub may not waive the condition in clause Company and (iB) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases that changes the Offer Price form of consideration payable in the Offer, (ii) changes decreases the form of consideration to be paid payable in the Offer, (iii) reduces the maximum number of Shares shares of Company Common Stock to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I or which otherwise modifies the conditions set forth in such Annex A or (v) amends makes any other term of the Offer in a manner change which is adverse to the holders of SharesCompany Common Stock. Subject to Notwithstanding the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub mayforegoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) extend the Offer on for one or more occasions for any period periods (not exceeding ten (10) in excess of 10 Business Days for any extensioneach) but in no event ending later than the Termination Date if, if on any then-at the scheduled or extended expiration date of the Offer Offer, any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer existwaived, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at Offer or any period required by applicable law or (iii) for an aggregate period of not more than 10 Business Days beyond the Initial Expiration Time latest applicable date that would otherwise be permitted under clause (i) or subsequent expiration time related to an extension (ii) of the Offer, including an extension pursuant to this sentence, any if, as of the conditions to the obligation of Sub to accept for paymentsuch date, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are have been satisfied or waived, but the number of Shares shares of Company Common Stock validly tendered and not withdrawnwithdrawn pursuant to the Offer equals 80% or more, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute but less than 90%, of the number outstanding shares of Shares required Company Common Stock on a fully diluted basis. In the event that Merger Sub is unable to consummate the Offer on the initial scheduled expiration date due to the failure of the conditions to the Offer to be satisfied or waived, Parent shall cause Merger Sub to, unless this Agreement is terminated pursuant to Section 2.10 (assuming Article IX, extend the exercise of Offer and set a subsequent scheduled expiration date, and shall continue to so extend the Top-Up Option in full), then, Offer and set subsequent scheduled expiration dates until the Termination Date. Subject to the foregoing and upon the applicable expiration time terms and subject to the conditions of the Offer, Parent shall cause Merger Sub may 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 will announce the exact Exchange Ratio with respect to each share of Company Common Stock that is to be exchanged in the Offer by 9:00 a.m., New York City time, on the second Trading Day immediately preceding the Acceptance Date. Parent will make such announcement by issuing a press release to the Dow ▇▇▇▇▇ News Service.
(and if b) As soon as reasonably practicable on the Company so requests Sub date of commencement of the Offer, Parent shall, and Parent shall cause Merger Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and or supplements thereto, the “"Schedule TO"). As soon as reasonably practicable ----------- after the date hereof, Parent shall, and shall cause Merger Sub to, file the Offer Registration Statement (the Schedule TO, the Offer Registration Statement and such documents included therein pursuant to which the Offer will be made, the "Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents Company agree promptly to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any --------------- information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Parent shall, and Parent shall cause Merger Sub further agrees to take all steps necessary to cause the Schedule TO and the Offer Documents Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be, at such time as reasonably agreed by Parent and the Company, disseminated to holders of Shares shares of Company Common Stock, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are prior to their being filed with the SEC or disseminated to the holders of Sharesshares of Company Common Stock. Parent shall, and Parent and shall cause Merger Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel with any comments or communications, whether written or oral, that Parent, 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 Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The and shall provide the Company and its counsel shall be given a reasonable an opportunity to review any responses participate in the response of Parent or Merger Sub to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only Subject to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves Article 9, as soon as practicable but no later than five (5) Business Days after the right first to waive any conditions to occur of (x) the Offer Effective Time and (y) the satisfaction or change the terms waiver of the Offer except thatconditions in Article 9, without ABI Sub or another Subsidiary of ABI that ABI may appoint in the future with the prior written consent of the Company, such consent not to be unreasonably withheld or delayed; provided , that any such appointment shall not release ABI or ABI Sub may not waive from any of its obligations hereunder (ABI Sub or such appointed Subsidiary of ABI, the condition “ Offeror ”), shall, and ABI shall cause the Offeror to, commence a public tender offer in clause Mexico (the “ Offer ”) to purchase all of the outstanding Company Shares in accordance with the following terms:
(i) The Offer shall be made for all outstanding Company Shares to all holders of Annex A (Company Shares on equal terms and shall be settled on the “Minimum Condition”) BMV. ABI and the Offeror shall cause the Offer to be conducted in accordance with applicable Laws, regulations, rules and interpretations of each applicable Governmental Authority or the condition in clause stock exchange.
(ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the The Offer shall expire on the date (the “Initial Expiration Time”) that is remain open for twenty (20) Business Days after the commencement of Offer is commenced, unless extended in accordance with the following two sentences (the last day the Offer (determined pursuant to Rule 14d-1(g)(3) under is open, the Exchange Act“ Expiration Date ”). Sub may, without Without the consent of a majority of the CompanyNon-ABI Directors, the Offeror shall not (A) reduce the amount of Company Shares subject to the Offer, (iB) reduce the amount of consideration payable in the Offer for any Company Share validly tendered in the Offer, (C) add or modify any condition to the Offer, (D) extend the Offer on one or more occasions for any period not exceeding ten (10except as provided in the immediately following sentence), (E) Business Days for any extension, if on any then-scheduled expiration date change the form of consideration payable in the Offer or (F) otherwise amend the Offer in any manner materially adverse to the holders of Company Shares. Notwithstanding the events set forth in Annex A foregoing, the Offeror shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position (in increments of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.ten
Appears in 1 contract
Sources: Transaction Agreement
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article VIII, Sub as promptly as practicable after the date of this Agreement, Parent shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable after to purchase all issued and outstanding shares of Common Stock (including Company Restricted Stock Awards) not then owned by ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, and/or their Affiliates, at the date hereof (but Offer Price; provided, however, that Parent shall not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub be required to commence the Offer shall be subject only to the condition that none of the events set forth in clauses if (v)(ai) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) any of the conditions set forth in such clauses 2(a), 2(b), 2(c), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k), 2(l), 2(m), 2(n), or 2(o) of Annex A. Sub I have occurred or (ii) the Company Board shall have made an Adverse Change Recommendation. The Offer Price shall be net to the sellers in cash, subject to withholding of any applicable Taxes required by Law to be withheld.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), promptly after the later of (i) twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (ii) the earliest date as of which the Minimum Condition has been satisfied and each of the other Offer Conditions has been satisfied, or waived, by Parent, Parent shall consummate the Offer in accordance with its terms, and accept for payment and pay promptly after the Expiration Time for all shares of Common Stock (including Company Restricted Stock Awards) validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Parent expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition (provided that Parent will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions to of the Offer or change not inconsistent with the terms of this Agreement, in each case subject to extending the Offer except thatas required by applicable Law; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Sub may Parent shall not waive the condition in clause (iA) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in decrease the Offer may be made which Price, (iB) decreases change the Offer Price form of consideration payable in the Offer, (iiC) changes decrease the form maximum number of consideration shares of Common Stock sought to be paid purchased in the Offer, (iiiD) reduces the maximum number of Shares to be purchased in the Offer add to, or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes impose conditions to the Offer, other than the Offer in addition to those set forth in Annex A hereto Conditions, (E) amend or which otherwise modifies modify any of the conditions set forth in such Annex A Offer Conditions or (v) amends any other term of the terms of the Offer in a manner adverse to the holders of Sharesshares of Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions contemplated hereby, (F) waive or change the Minimum Condition or (G) extend or otherwise change the Expiration Time in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Time (or any rescheduled Expiration Time), unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at midnight (Eastern time) on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Time”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Time, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent if permitted hereunder, then by press release or other public announcement no later than the earlier of 9:00 a.m. (Eastern time) or the opening of trading on NASDAQ on the next Business Day after the then scheduled Expiration Time (A) Parent may, at its option, extend the Offer for one or more periods of not more than ten (10) Business Days each (or such other number of Business Days as the parties may agree and ending no later than the Termination Date in order to permit the satisfaction of such conditions (subject to the right of Parent to waive any Offer Condition, other than the Minimum Condition, in accordance with this Agreement)) and (B) if and as requested by the Compay, Parent shall, if such condition or conditions are then capable of being satisfied prior to the Termination Date, extend the Offer from time to time until such conditions are satisfied or waived; provided, that Parent shall not be required to extend the Offer beyond the Termination Date; and
(ii) Parent shall extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff, in each case applicable to the Offer, provided that Parent shall not be required to extend the Offer beyond the Termination Date.
(f) Parent may (and the Offer Documents shall reserve the right of Parent to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act of not less than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer. Subject to the terms and conditions of set forth in this Agreement and the Offer and this AgreementOffer, Sub shall, and Parent shall cause Sub to, accept for payment, purchase payment and pay for all Shares shares of Common Stock validly tendered and not withdrawn pursuant to the Offer during such subsequent offering period as soon promptly as practicable after any such shares of Common Stock are tendered and in any event in compliance with Rule 14e-1(c) under the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j)Exchange Act. Parent shall provide or cause to be provided to Sub on a timely basis the funds sufficient necessary to purchase and pay for any and all Shares shares of Common Stock that Sub Parent becomes obligated to accept for payment, payment and purchase and pay for pursuant to the OfferOffer and shall fulfill all of its covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing.
(bg) Unless extended as provided In the event that this Agreement is terminated pursuant to the terms hereof, Parent shall (i) promptly (and in this Agreementany event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, (ii) not acquire any shares of Common Stock pursuant to the Offer shall expire and (iii) cause any depositary acting on behalf of Parent to promptly return, in accordance with applicable Law, all tendered shares of Common Stock to the registered holders thereof.
(h) As promptly as practicable on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the of commencement of the Offer (determined pursuant to within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act). Sub may, without the consent of the Company, Parent shall (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall include the offer “Schedule TO”) that will contain or incorporate by reference the Offer to purchase, Purchase and form of the related letter of transmittal and transmittal, form of notice of guaranteed delivery summary advertisements and all such other ancillary customary documents as the Company and Parent may agree (the Schedule TO, the Offer documents (collectivelyto Purchase and such other documents, together with any all amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent ) and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares shares of Common Stock, in each case as and to the extent required by applicable federal securities Laws. Parent shall cause the Offer Documents and Suball exhibits, on amendments or supplements thereto filed by Parent with the one hand, SEC to comply in all material respects with the Exchange Act and the Companyrules and regulations thereunder and other applicable Laws. Each of Parent, on Merger Sub and the other hand, agree to Company shall promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to respect, and Parent shall promptly cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to holders of Shares shares of Common Stock, in each case as and to the extent required by applicable federal securities LawsLaw. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel, for inclusion in the Offer Documents, all information reasonably requested by Parent and reasonably available to the Company concerning the Company and the Company’s shareholders that may be required in connection with any action contemplated by this Section 1.1(h) to be included in the Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the shares of Common Stock. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC. In addition, Parent shall provide the Company and its counsel with any comments Parent or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments, and any written responses thereto, and to promptly inform them of any oral comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated upon any written responses and to holders of Shares, participate in any oral responses and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes changes, as applicable, suggested thereto by the Company and its counsel. In addition, Parent and Sub agree shall respond promptly to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from of the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselOffer.
Appears in 1 contract
Sources: Merger Agreement (Frozen Food Express Industries Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article 7, as promptly as practicable (but in no event later than ten (10) Business Days) after the date hereof, Merger Sub shall commence (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2(a) of 14d 2 under the Exchange Act) , the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from to purchase for cash any and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause all (i) of Annex A Company Shares (other than Company Shares to be cancelled in accordance with Section 2.1(b)) at the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Company Share Offer may be made which (i) decreases the Offer Price payable in the OfferPrice, (ii) changes shares of Series A Preferred Stock at the form of consideration to be paid in the Offer, Series A Offer Price and (iii) reduces shares of Series B Preferred Stock at the maximum number of Shares to be purchased in the Series B Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesPrice. 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, purchase and pay for all Company Shares and shares of Company Preferred Stock, as applicable, validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of Offer, subject only to: (a) there being validly tendered in the Offer (in the date aggregate) and not properly withdrawn prior to the Expiration Date (1) that number of acceptance for paymentCompany Shares and shares of Company Preferred Stock that, together with the number of Company Shares and shares of Company Preferred Stock (if any) then owned by the Parent, equals at least a majority in voting power of the Company Shares and shares of Company Preferred Stock then issued and outstanding, voting together as a single class, (2) that number of shares of Series A Preferred Stock that, together with the number of shares of Series A Preferred Stock (if any) then owned by Parent, equals at least a majority of the shares of Series A Preferred Stock then issued and outstanding, and (3) that number of shares of Series B Preferred Stock that, together with the number of shares of Series B Preferred Stock (if any) then owned by Parent, equals at least a majority of the shares of Series B Preferred Stock then issued and outstanding (collectively, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance TimeMinimum Condition”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) ); and (j). b) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I.
(b) On or prior to the date that Merger Sub becomes obligated to pay for Company Shares and shares of Company Preferred Stock pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Company Shares and shares of Company Preferred Stock, as applicable, that Merger Sub becomes shall become obligated to accept for payment, payment and purchase and pay for pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I, Merger Sub shall accept for payment (the time of such acceptance, the “Acceptance Time”) and pay for all Company Shares and shares of Company Preferred Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable following the Expiration Date, and, in any event, no more than three Business Days after the Expiration Date. The Offer Price payable in respect of each Company Share and share of Company Preferred Stock, as applicable, validly tendered and not properly withdrawn pursuant to the Offer shall be paid to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law, on the terms and subject to the conditions set forth in this Agreement.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with applicable Law and this Agreement, including the conditions and requirements set forth in Annex I. To the extent permitted by applicable Law, Parent and Merger Sub expressly reserve the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that except with the prior written approval of the Company, Merger Sub shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Company Shares or shares of Company Preferred Stock sought to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) amend any of the other conditions to the Offer set forth in Annex I in a manner adverse to the holders of Company Shares or shares of Company Preferred Stock, (vi) impose conditions to the Offer that are in addition to the conditions to the Offer set forth in Annex I hereto, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the other terms of the Offer in a manner adverse in any material respect to the holders of Company Shares or shares of Company Preferred Stock.
(d) Unless extended as provided in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (New York City time) on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after following the commencement of the Offer (determined pursuant to using Rule 14d-1(g)(3) promulgated under the Exchange Act). Sub may) (such date and time, without the consent of the Company, (i“Initial Expiration Date”) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionor, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or subsequent expiration such later date and time related to an extension of which the OfferInitial Expiration Date has been extended in accordance with this Agreement, including an extension pursuant to this sentencethe “Expiration Date”).
(e) If on any then scheduled Expiration Date, any of the conditions to the obligation of Sub to accept for payment, purchase Offer (including the Minimum Condition and pay for Shares tendered pursuant to the Offer has other conditions and requirements set forth in Annex I) have not been satisfied (or waived in accordance with this Agreement)by Merger Sub, then, if requested by the Company, Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) extend the Offer through for successive periods of up to 10 Business Days each, or such time longer period as may be agreed between Merger Sub and the Company may specifyCompany, which time shall be no later than in order to permit the Termination Datesatisfaction of such conditions; provided provided, however, that the Company Merger Sub shall not be entitled required to so request such an extension if extend the Offer beyond the Outside Date. The “Outside Date” shall be July 15, 2017. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of SEC or its staff.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then Company, except if this Agreement has been satisfied or waived terminated in accordance with Article 7. If this Agreement is terminated in accordance with Article 7, Merger Sub shall (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Merger Sub to) provide a subsequent offering period promptly (a “Subsequent Offering Period”and in any event within 24 hours following such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any Company Shares or shares of Company Preferred Stock pursuant thereto. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (and the Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Rule 14d-11 under the Exchange Act andapplicable Law, if applicable all tendered Company Shares and shares of Company Preferred Stock to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodregistered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Company Shares or shares of Company Preferred Stock pursuant to the Offer.
(dg) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include include, as exhibits, the offer Offer to purchasePurchase, a form of the related letter of transmittal and a form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments amendments, supplements and supplements exhibits thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Merger Sub shall agree to cause the Offer Documents to be disseminated to holders of Company Shares and shares of Company Preferred Stock, as and to the extent required by applicable federal securities Laws, including the Exchange Act. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly notify the other party and correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. , and Merger Sub further agrees to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Company Shares and shares of Company Preferred Stock, in each case, as and to the extent required by applicable federal securities Lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of SharesSEC, and Parent and Merger Sub shall give due consideration to all reasonable any additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments or communicationswritten comments, whether and shall provide them a written or oralsummary of any oral comments, that Parent, Parent and Merger Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such responses to such comments or communications, and Parent and Merger Sub shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
Sources: Merger Agreement (Integra Lifesciences Holdings Corp)
The Offer. (a) Provided only that (i) this Agreement shall not have been terminated in accordance with its terms, (ii) none of the events set forth in clause (iii)(a) of Annex A shall have occurred, (iii) there being no Law or Order enjoining, restraining or otherwise prohibiting the commencement of the Offer and (iv) the Company (A) has timely provided any information required to be provided by it pursuant to Section 2.01(g) and (B) is prepared in accordance with Section 2.02(b) to file with the SEC, and to disseminate to holders of Company Shares, the Schedule 14D-9 as and when required by Section 8.12.02(b), Sub Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable reasonably practicable, but no later than 10 business days (commencing with the first business day after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement), after the date hereof. Following such commencement, each of Parent and Purchaser shall consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase and pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be solely subject only to the satisfaction (or waiver pursuant to the terms hereof of (x) the condition (the “Minimum Condition”) that at least that number of Company Shares validly tendered and not withdrawn prior to the Expiration Date (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 Sub in their sole discretion (but subject any of its controlled Subsidiaries, if any, equal a majority of the outstanding Company Shares as of immediately prior to the next sentence)Acceptance Time and (y) of the other conditions set forth in such Annex A. Sub A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). To the extent permitted by Law, Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any conditions such condition (other than the Minimum Condition which may not be amended or waived), to increase the Offer or change price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer except thatOffer; provided, that without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and Company no change in the Offer may be made which (i) that decreases the Offer Price Per Share Amount (except as provided in Section 2.01(h)), changes the form of consideration payable in the Offer, (ii) changes adds to the form of consideration conditions to be paid in the Offer, (iii) reduces decreases the maximum number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of this Section 2.01 or the minimum number of Shares contemplated by the Minimum Conditionsupplements, (iv) imposes conditions modifies or amends any condition to the Offer in addition to those set forth in Annex A hereto any manner that broadens such conditions or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner is adverse to the holders of Company Shares. .
(c) Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreementthereof, the Offer shall expire remain open until the time that is one minute following 11:59 p.m., New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after at the commencement end of the 20th business day beginning with (and including) the date that the Offer is commenced (as determined pursuant to in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”). Sub may, without unless the consent period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.01 or as required by applicable Law or the interpretations of the CompanySEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 9.01, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A Purchaser shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer. IfOffer and (ii) if, at on the Initial initial Expiration Time Date or any subsequent expiration time related date as of which the Offer is scheduled to an extension of the Offer, including an extension pursuant to this sentenceexpire, any of the conditions to the obligation of Sub to accept for payment, purchase Tender Offer Condition is not satisfied and pay for Shares tendered pursuant to the Offer has not been satisfied waived, then Purchaser shall (or waived in accordance with this Agreement), then, if so requested by the Company) extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, Sub shallan “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.01(d), (A) if any of the events set forth in clause (iii)(a) of Annex A shall have occurred and not been waived or cured on or before the initial Expiration Date or the end of any Additional Offer 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 30 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Section 2.01(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 9.01.
(e) Purchaser shall not, and Parent shall cause Sub Purchaser not to, extend terminate or withdraw the Offer through such time as prior to any scheduled Expiration Date without the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any prior written consent of the conditions set forth Company, except if this Agreement is terminated pursuant to Section 9.01. In the event that this Agreement is terminated pursuant to Section 9.01, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in clause (v)(b) any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or (v)(c) of Annex A have not then been satisfied or waived withdrawn by Purchaser in accordance with the terms of this Agreement Agreement, Purchaser shall (other than and Parent shall cause Purchaser to) promptly return, and shall cause any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise depositary acting on behalf of its reasonable efforts for a period not greater than thirty (30) daysPurchaser to return, in which case accordance with applicable Law, all tendered Company Shares to the registered holders thereof and Purchaser shall not (and Parent shall cause Purchaser not to) accept any Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer Shares pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIOffer.
(cf) If all The Per Share Amount shall, subject to applicable withholding of Taxes, be paid net to the applicable seller in cash, upon the terms and subject to the conditions of the conditions Offer. Subject to the Offer are satisfied terms and conditions of this Agreement Purchaser, or waivedParent on Purchaser’s behalf, but the number of shall accept for payment and pay for all Company Shares validly tendered and not withdrawnwithdrawn promptly following the expiration of the Offer; provided, together with however, that without the Sharesprior written consent of the Company, if anyPurchaser shall not accept for payment or pay for any Company Shares if, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parentas a result, Parent and Sub, each a “Parent Company”), constitute Purchaser would acquire less than the number of Company Shares required necessary to consummate satisfy the Merger pursuant Minimum Condition. The time at which Purchaser first accepts for payment the Company Shares tendered in the Offer is referred to Section 2.10 (assuming as the exercise “Acceptance Time.” If payment of the Top-Up Option Per Share Amount is to be made to a person other than the person in full)whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, thenit 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, upon or shall have established to the applicable expiration time reasonable satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(g) On the date of commencement of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub 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, which . The Schedule TO shall include the contain or shall incorporate by reference an offer to purchase, purchase (the “Offer to Purchase”) and form of the related letter of transmittal and form of notice of guaranteed delivery and all any other ancillary documents pursuant to which the Offer documents will be made (collectivelythe Schedule TO, the Offer to Purchase and such other documents, together with any all exhibits, supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to holders of Company Shares as in all material respects to the extent required by applicable federal securities Laws. Parent and SubPurchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities Laws; provided, that no covenant is made by Parent or Purchaser with respect to information supplied by or on behalf of the one handCompany for inclusion or incorporation by reference in the Offer Documents. Parent, Purchaser and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub respect, and Parent and Purchaser further agrees agree to take all steps necessary use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares as required by Company Shares, in each case in compliance in all material respects with the applicable requirements of 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 2.01(g). Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Purchaser shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub Purchaser agree to (i) provide the Company and its counsel in writing with any written comments or communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments, (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or communications. The 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 in Recommendation, provide the Company and its counsel shall be given a reasonable opportunity to review and comment on any responses written or oral response to such comments or communicationsany proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(h) If, between the date of this Agreement and Parent and Sub the Acceptance Time, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall give due consideration be adjusted to all reasonable additions, deletions or changes suggested thereto by the Company and its counselextent appropriate.
Appears in 1 contract
Sources: Merger Agreement (Resonant Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 and none of the events or conditions set forth in Annex I hereto (other than subsection (i) therein) shall have occurred and be continuing and not have been waived by Parent or Purchaser, Sub as promptly as reasonably practicable and, in any event, within ten (10) Business Days of the date of this Agreement, the Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) the Offer as promptly as practicable after to purchase for cash all Shares at the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation obligations of Sub the Purchaser to commence accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not properly withdrawn shall be subject only to (i) there being validly tendered and not properly withdrawn prior to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms expiration of the Offer except that, without the prior written consent that number of Shares which represents a majority of the Company, Sub may not waive the condition in clause (i) of Annex A Shares outstanding on a fully-diluted basis (the “Minimum Condition”) or the condition in clause and (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes other conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesI hereto. Subject to the terms prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer and this Agreementset forth in Annex I hereto, Sub shall, the Purchaser shall (and Parent shall cause Sub Purchaser to), in accordance with the terms of the Offer, consummate the Offer and accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable promptly after the expiration of the Offer (Offer, which shall initially be the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable 20th Business Day following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer Offer, provided, however, that (determined pursuant to Rule 14d-1(g)(3x) under if on the Exchange Act). Sub may, without the consent initial expiration date of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-subsequent scheduled expiration date of the Offer any of (as extended in accordance with this Agreement), all conditions to the events set forth Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in Annex A shall have occurred and be continuingits sole discretion, until extend the Offer for such time period as such event or events shall no longer existthe Purchaser may determine, and (iiy) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend (z) the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Purchaser may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each provide a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act andAct, if applicable provided that, in no event shall the Offer or any “subsequent offering period” extend beyond the Outside Date without the mutual written consent of the Company and Parent. In addition, the Purchaser may increase the Offer Price and extend the Offer to the extent required by Law in connection with such increase, in each case in its sole discretion and without the Company’s consent. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Purchaser shall, without the prior written consent of the Company (i) change or waive the Minimum Condition, (ii) reduce the Offer Price or decrease the number of Shares sought to be purchased in the Offer, (iii) change the expiration date of the Offer (except to the extent required or permitted under such Rule 14d-11pursuant to this Section 1.1(a)), thereafter extend such subsequent offering periodimpose any condition to the Offer in addition to the conditions set forth or referred to in this Section 1.1(a) or amend, modify or supplement any of the terms of the Offer in any manner adversely affecting the holders of Shares.
(db) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects Subject to the Company’s compliance with the applicable provisions of the Exchange Act. Section 1.2(b), Parent and Sub the Purchaser shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable U.S. federal securities Lawslaws. Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub The Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable U.S. federal securities Lawslaws. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub Purchaser shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with (i) any comments or communications, whether written or oral, that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Subthe Purchaser’s, as the case may be, receipt of such comments or communications. The Company comments, and its counsel shall be given (ii) a reasonable opportunity to review participate in the response of Parent or Purchaser 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/or Purchaser or their counsel in any responses to such comments discussions or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by meetings with the Company and its counselSEC.
Appears in 1 contract
Sources: Merger Agreement (OAO Severstal)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) a failure to satisfy any of the Exchange Act) the Offer conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof (hereof, but not in no event later than five business days following the fifth (5th) Business Day from and including the date of initial public announcement of the terms of this Agreement), commence an offer (the "Offer") to purchase all of the outstanding Shares of the Company at a price of $34.00 per Share, net to the seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none there shall have been tendered a number of Shares which, together with the Shares then owned by Buyer and its affiliates, represents at least a majority of the events set forth in clauses Shares outstanding on a fully diluted basis (v)(athe "Minimum Condition") or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I hereto. Merger Subsidiary expressly reserves the right to waive any of the other conditions to the Offer or change (other than the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no to make any change in the Offer terms or conditions of the Offer; provided that no change may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid or decreases the price per Share or the number of Shares sought in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I, amends the terms and conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this AgreementCompany or, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended except as provided in this Agreementthe next two sentences, extends the Offer shall expire on Offer. Notwithstanding the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub foregoing, Merger Subsidiary may, without the consent of the Company, Company (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer Offer, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A conditions to Merger Subsidiary's obligation to accept for payment and to pay for the Shares shall have occurred and not be continuingsatisfied or waived, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at So long as this Agreement is in effect and the Initial Expiration Time or subsequent expiration time related to an extension condition of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(cy) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) first paragraph of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are I has not been satisfied or waived, but Merger Subsidiary shall extend the number of Shares validly tendered and Offer from time to time for a period or successive periods not withdrawn, together with to exceed 10 business days each after the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable previously scheduled expiration time date of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall file with the SEC Securities and Exchange Commission (the "SEC") a Rule 13E-3 Transaction Statement on Schedule 13E-3 (the "Schedule 13E- 3") and a Tender Offer Statement on schedule 14D-1 (the "Schedule TO 14D-1") with respect to the Offer. The Schedule 13E-3, which shall include the Schedule 14D-1 and the related offer to purchase, form of the related purchase and letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectivelytransmittal, together with any supplements or amendments and supplements thereto, are collectively referred to herein as the “"Offer Documents”)". The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, Buyer and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further Merger Subsidiary agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are Schedule 14D-1 and Schedule 13E-3 prior to their being filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 1 contract
Sources: Merger Agreement (Asa Holdings Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.01, Sub Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as practicable after the date hereof (hereof, but not in no event later than seven business days after the fifth (5th) Business Day from and including the date of initial public announcement of the execution of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase and to pay for for, Shares tendered pursuant to the Offer shall be subject only to the condition (the "Minimum Condition") that at least the number of Shares that when added to the Shares already owned by Parent, Purchaser or any subsidiary of Parent, if any, shall constitute two-thirds of the then outstanding Shares on a fully diluted basis (on a "fully diluted basis" meaning the number of Shares outstanding, together with the Shares which the Company may be required to issue pursuant to options or obligations outstanding at that date and which do not terminate upon consummation of the Offer under any employee stock or similar benefit plans or otherwise, whether or not vested or then exercisable) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) Purchaser of the other conditions set forth in such Annex A. Sub A hereto. Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, Purchaser may not (i) waive the Minimum Condition (except under circumstances whereby the "Option" (as defined in the Shareholders Agreement) is or, upon the expiration of the Offer, will be, exercisable in accordance with its terms, provided that such Option is exercised by Parent or Purchaser as soon as practicable after it becomes so exercisable and, upon any such exercise, the Minimum Condition will be satisfied), (ii) changes decrease the form of consideration to be paid price per Share payable in the Offer, (iii) reduces reduce the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes impose conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or hereto, (v) amends except as provided below, extend the Offer, (vi) change the form of consideration payable in the Offer, or (vii) make any other term change in the terms or conditions of the Offer in a manner that is otherwise adverse to the Company or the holders of Shares. Subject to Notwithstanding the terms and conditions of the Offer and this Agreementforegoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionup to 30 business days beyond the scheduled expiration date, if on any then-which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration date of the Offer Offer, any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer existconditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or, to the extent permitted by this Agreement, waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC"), or the staff thereof thereof, applicable to the Offer. If, at or (iii) extend the Initial Expiration Time Offer for an aggregate period of not more than five business days beyond the latest applicable date that would otherwise be permitted under clause (i) or subsequent expiration time related to an extension (ii) of the Offer, including an extension pursuant to this sentence, any if, as of such date, all of the conditions to the obligation of Sub Purchaser's obligations to accept for payment, purchase and to pay for for, the Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawnwithdrawn pursuant to the Offer equals 75% or more, together with but less than 90%, of the Sharesoutstanding Shares on a fully diluted basis, if any, held by Parent so long as the Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer set forth on Annex A hereto (other than the Minimum Condition and Sub or any other direct or indirect wholly owned Subsidiary the condition set forth in paragraph (a) of Parent (Annex A hereto) that subsequently may not be satisfied during any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise extension of the Top-Up Option in full)Offer. If, then, upon on the applicable initial scheduled expiration time date of the Offer, Sub may (x) the sole condition remaining unsatisfied is the failure of the waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), to have expired or been terminated, then Purchaser shall extend the Offer from time to time until five business days after the expiration or termination of the applicable waiting period under the HSR Act and (y) if the condition set forth in paragraph (c) or (d) of Annex A shall not have been satisfied, the Purchaser shall, so long as the breach can be cured and the Company so requests Sub is vigorously attempting to cure such breach, extend the Offer from time to time until five business days after such breach is cured (provided that Purchaser shall not be required to extend the Offer beyond 30 business days after such initial scheduled expiration date). The Per Share Amount shall be net to the seller in cash, upon the terms and subject to the conditions of the Offer and Section 2.08(e). Subject to the terms and conditions of the Offer, Purchaser shall, and Parent shall cause Sub Purchaser to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under , pay, as promptly as practicable after expiration of the Exchange Act andOffer, if applicable for all Shares validly tendered and not withdrawn. The Company shall not tender Shares held by it or by any of its Subsidiaries pursuant to the extent permitted under such Rule 14d-11Offer, thereafter extend such subsequent offering periodexcept pursuant to Section 2.07(b).
(db) As soon as practicable on On the date of commencement of the Offer is commencedOffer, Parent and Sub 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, which . The Schedule TO shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the "Offer to Purchase") and forms of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer offer documents (collectivelythe Schedule TO, the Offer to Purchase and such other documents, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub Purchaser shall cause the Offer Documents to be disseminated to the holders of Shares as required by soon as practicable following the commencement of the Offer. The Offer Documents shall comply in all material respects with the provisions of applicable federal securities Lawslaws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to shall correct promptly correct any information provided by it for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to respect, and Parent and Purchaser shall cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, Parent and Sub agree to Purchaser shall provide the Company and its counsel in writing with any comments or communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments and with copies of any written responses and telephonic notification of any verbal responses by Parent, Purchaser or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its their counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.01 and nothing shall have occurred that would render any of the conditions set forth in Annex A hereto incapable of being satisfied, Sub as promptly as practicable (but in no event later that five (5) business days after the date of this Agreement), Purchaser shall commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase for cash (the "Offer") any and all of the Exchange Actissued and outstanding shares of Common Stock (the "Shares") at a price of $8.79 per Share, net to the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement seller in cash, without interest. For purposes of this Agreement), the term "Transaction Consideration" shall mean $8.79 per Share in cash or any higher price as shall be paid in respect of the Shares in the Offer. The obligation obligations of Sub Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject to only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive A hereto (any conditions or all of which may, subject to the Offer provisions hereof, be waived by Parent or change the terms of the Offer except thatPurchaser, without subject to applicable law). Without the prior written consent of the Company, Sub may Purchaser shall not waive the condition in clause (i) of Annex A (decrease the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferTransaction Consideration with respect to any Shares, (ii) changes decrease the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or Offer, (iii) change the minimum number form of Shares contemplated by consideration payable in the Minimum ConditionOffer, (iv) imposes add to or change the conditions to the Offer set forth in addition Annex A, (v) waive the Minimum Condition (as defined in Annex A) or (vi) make any other change in the terms or conditions of the Offer. Parent and Purchaser expressly reserve the right to those waive any condition (other than the Minimum Condition) specified in Annex A or to increase the Transaction Consideration. Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if the conditions set forth in Annex A hereto or which are not satisfied or, to the extent permitted hereby, waived by Purchaser as of the date the Offer would otherwise modifies have expired, then, except to the extent that such conditions set forth in such Annex A or (v) amends any other term are incapable of being satisfied, Purchaser will extend the Offer from time to time until the earlier of the consummation of the Offer in a manner adverse to or the holders date which is twenty (20) business days from the original expiration date of Sharesthe Offer (such date, the "Final Date"). Subject Purchaser shall, subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toOffer, accept for payment, purchase and pay for all payment Shares validly tendered and not withdrawn pursuant as soon as it is legally permitted to do so under applicable law; provided, however, that Purchaser shall be entitled to extend the Offer one or more times beyond the Final Date for an aggregate period of up to ten (10) business days if on the Final Date the conditions to the Offer as soon as practicable after the expiration set forth in Annex A have been satisfied or waived but there shall not have been tendered that number of Shares which would equal at least ninety percent (90%) of the Offer (the date of acceptance for payment, the “Acceptance Date” issued and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j)then outstanding Shares. Parent Purchaser shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept consummate the Offer immediately upon reaching such ninety percent (90%) threshold. Such extended date shall then be the Final Date for paymentpurposes of this Agreement. The Company agrees that it will not tender, purchase and pay for will not permit any of its subsidiaries to tender, any Shares held by it or any such subsidiary pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (aA) Provided An “Offer” for the purposes of this Schedule is an offer to surrender this Lease to the Landlord free from encumbrances (other than any subject to which this Lease was granted) and which:
(i) is unconditional;
(ii) is made irrevocably by the Tenant unless and until rejected or treated as rejected by the Landlord pursuant to paragraph 6.3(C) of this Part I of this Schedule;
(iii) is made in the form set out in Part II of this Schedule;
(iv) is submitted by the Tenant to the Landlord in duplicate, both parts of which are signed by the Tenant;
(v) specifies the Consideration; and
(vi) specifies whether any tenant’s fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or deemed receipt) of an Offer, the Landlord shall be entitled (but not obliged) to give notice in writing to the Tenant stating either:
(i) that this Agreement shall it does not have been terminated wish to accept the Offer in which event the provisions of paragraph 6.3(C) will apply; or
(ii) that it is minded to accept the Offer at the Consideration, subject to compliance with section 38A(4) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in which event subject to compliance by the Landlord and the Tenant with paragraph 6.4 the Landlord will accept the Offer in accordance with paragraph 6.5 within 5 (five) Business Days of compliance by the Tenant with the provisions of paragraph 6.4(B);
(C) In the event (i) the Landlord declines to accept the Offer pursuant to paragraph 6.3(B)(i) or (ii) at the expiry of the 25 Business Days’ period specified in paragraph 6.3(B) the Landlord has not notified the Tenant that it is minded (subject to compliance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a38A(4) of the Exchange ActLandlord and Tenant Act 1954) to accept a surrender of this Lease and the Offer is thereby treated as promptly as practicable after rejected by the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) Landlord or (iii) of Annex A, and no change in the Landlord has not within 20 Business Days after notifying the Tenant pursuant to paragraph 6.3(B)(ii) that it is minded to accept the Offer then complied with the provisions of Section 38A(4) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and paragraph 6.4(A) and following compliance by the Tenant with paragraph 6.4(B) accepted the Offer pursuant to paragraph 6.5, the Tenant may be made which assign or underlet this Lease to a third party tor a consideration determined by the Tenant, provided that:
(i) decreases the Offer Price payable Tenant must comply with the provisions of paragraph 3.20 (other than paragraph 3.20(E)) of Schedule 3;
(ii) the Tenant shall keep the Landlord fully informed of its negotiations with third parties in respect of any proposed assignment or underletting, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may be redacted by the Tenant if the Tenant reasonably considers it to be necessary, save that the key terms including the consideration must be disclosed to the Landlord);
(iii) the third party transaction must be bona fide and on arm’s length terms; and
(iv) if the proposed assignment or underlease to a third party would be for less than the Consideration specified in the Offer, the Tenant must first offer to surrender this Lease to the Landlord for the price which has been agreed with the proposed assignee or undertenant (iithe “Revised Offer’’) changes and the form Landlord shall be entitled but not obliged within 10 Business Days of consideration receipt (or deemed receipt), time being of the essence, of the Revised Offer to be paid in decline the Offer, (iii) reduces the maximum number of Shares to be purchased in the Revised Offer or to notify the minimum number Tenant that it is minded to accept the Revised Offer subject to compliance with Section 38A(4) of Shares contemplated the Landlord and Tenant ▇▇▇ ▇▇▇▇. In the event that the Landlord fails to respond to the Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Minimum Condition, (ivLandlord. The Revised Offer shall comply in all respects with the provisions of paragraph 6.3(A) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant necessary revisions to the Offer.
(b) Unless extended as provided form set out in Part II of this Agreement, Schedule and the Consideration for the purposes of the Revised Offer shall expire on be the date consideration for which the Tenant is intending to dispose of this Lease whether monetary or not monetary and the terms of this paragraph (C) apply to the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement Revised Offer as if it were an Offer, save in respect of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by Landlord must notify the Company through the exercise Tenant of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant whether it intends to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIaccept.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
Sources: Lease Agreement (Indivior PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(ai) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events or circumstances set forth in clauses paragraphs (v)(aa) or through (v)(bf) of Annex A hereto shall have occurred and be continuing existing (and shall not have been waived by Parent) and (ii) the Company shall have complied with its obligations under Section 1.2 hereof, Parent or Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the Execution Date, but in their sole discretion), and no event later than 10 business days after the Execution Date.
(b) The obligation of Sub Parent to accept for paymentexchange, purchase and pay for to exchange the Offer Consideration for, Public Shares tendered pursuant to the Offer shall be subject only (i) to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer (other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not withdrawn that number of Public Shares which represents more than 50% of the Public Shares then outstanding, subject to Section 1.1(g) hereof the "Minimum Condition"), and (ii) to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)Parent) of the other conditions set forth in such Annex A. Sub A hereto. Parent expressly reserves the right to waive any of such conditions (other than the Minimum Condition and the condition set forth in clause (vi) of the second paragraph of Annex A hereto), to increase the consideration per Public Share payable in the Offer or change and to make any other changes in the terms of the Offer except thatOffer; provided, however, that no change may be made without the prior written consent of the Company, Sub may not waive Company which decreases the condition in clause (i) of Annex A (Exchange Ratio for the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change Offer from that set forth in the Offer may be made which second "Whereas" clause hereof (i) or decreases the Offer Price payable in number of shares of Parent Common Stock issuable pursuant to the OfferCSRs), (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares sought to be purchased acquired in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those the conditions set forth in Annex A hereto, waives the Minimum Condition or the condition set forth in clause (vi) of the second paragraph of Annex A hereto, or modifies or amends any of the conditions set forth in Annex A hereto or which otherwise modifies makes other changes in the conditions set forth in such Annex A or (v) amends any other term terms of the Offer that are in a any manner adverse to the holders of Shares. Subject to Public Shares or, except as provided below, extends the terms and conditions expiration date of the Offer and this AgreementOffer. Notwithstanding the foregoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer may (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (iA) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the initial scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A conditions to Parent's obligation to accept for exchange, and to exchange the Offer Consideration for, Public Shares tendered shall have occurred and not be continuingsatisfied or, until such time as such event or events shall no longer existto the extent permitted by this Agreement, waived, subject, however, to the parties' respective rights to terminate this Agreement pursuant to Section 7.1, and (iiB) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an Each extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this clause (A) of the preceding sentence for up shall not exceed the lesser of ten business days (or such longer period as the Company and Parent may agree in writing in any particular instance) or such fewer number of days that Parent reasonably believes are necessary to thirty (30) days cause the conditions of the Offer set forth in Annex A hereto to be satisfied. In addition, if, at the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If expiration date of the Offer, all of the conditions to the Offer are have been satisfied or waived(or, to the extent permitted by this Agreement, waived by Parent) but the number of Public Shares validly tendered and not withdrawnwithdrawn pursuant to the Offer, when taken together with the Shares, if any, held then beneficially owned by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute constitutes less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise 90% of the Top-Up Option in full)Shares then outstanding, then, upon without the applicable expiration time consent of the OfferCompany, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to(subject to applicable law) have the right to provide for a "subsequent offering period period" (a “Subsequent Offering Period”) in accordance with as contemplated by Rule 14d-11 under the Exchange Act and, if applicable Act) for up to 20 business days after Parent's acceptance for exchange of the Public Shares then tendered and not withdrawn pursuant to the extent permitted under such Rule 14d-11Offer, thereafter extend in which event Parent shall (I) give the required notice of such subsequent offering periodperiod and (II) immediately accept for exchange, and promptly exchange the Offer Consideration for, all Public Shares tendered and not withdrawn as of such expiration date.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Parent shall accept for exchange, and exchange the Offer Consideration (subject to any required withholding of taxes) for, all Public Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable law.
(d) Notwithstanding anything to the contrary set forth herein, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) will be entitled to receive an amount in cash (without interest) equal to such holder's proportionate interest in the net proceeds from the sale or sales in the open market by the Exchange Agent (as hereinafter defined), on behalf of such holders, of the aggregated fractional shares of Parent Common Stock issued pursuant to this paragraph. Promptly following the Purchase Date, (i) the Exchange Agent shall determine the total amount of the fractional shares of Parent Common Stock to which all such tendering stockholders would otherwise be entitled, and aggregate the same into whole shares of Parent Common Stock (rounded up to the nearest whole share), (ii) Parent shall issue such whole shares of Parent Common Stock to the Exchange Agent, as agent for such tendering stockholders, and (iii) the Exchange Agent shall sell such shares of Parent Common Stock at the then prevailing prices on the New York Stock Exchange through one or more member firms of the New York Stock Exchange (which sales shall be executed in round lots to the extent practicable). Until the net proceeds of such sales have been distributed to such tendering stockholders, the Exchange Agent will hold such proceeds in trust for such holders. Promptly after the determination of the amount of cash to be paid to such holders in lieu of any fractional interests in Parent Common Stock, the Exchange Agent shall pay such amounts to such holders (subject to any required withholding of taxes).
(e) The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered to Parent pursuant to the Offer.
(f) As soon promptly as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the "Schedule TO") and (ii) a registration statement on Form S-4 to register, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), the offer and sale of Parent Common Stock pursuant to the Offer and the Merger (together with all amendments, supplements and exhibits thereto, the "Registration Statement"). The Registration Statement shall include a prospectus (the "Prospectus") containing the information required under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include or contain as an exhibit an offer to purchase, exchange and form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectivelycollectively with the Prospectus, and together with any amendments all amendments, supplements and supplements theretoexhibits thereto and to the Prospectus, the “"Offer Documents”Documents "). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to the holders of the Public Shares as and to the extent required by applicable federal securities Lawslaws. Parent and SubParent, on the one hand, and the Company, on the other hand, agree to shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to respect, and Parent shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares the Public Shares, in each case, as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are filed with the SEC or and disseminated to holders of Public Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree agrees to provide the Company and its counsel with any comments or communicationscomments, whether written or oral, that Parent, Sub Parent or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The comments, to consult with the Company and its counsel prior to responding to any such comments and to provide the Company with copies of all such responses, whether written or oral. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
(g) If none of the Shares held by the securities holder channeling fund established in connection with Second Amended and Restated Joint Plan of Reorganization of Williams Communications Group, Inc. and CG Austria Inc. are validly t▇▇▇▇▇▇▇ in accordance with the terms of the Offer and not withdrawn at the expiration of the Offer, then the Shares in such fund shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by deemed not outstanding for purposes of the Company and its counselMinimum Condition.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub 5.1 and no event shall commence (within the meaning of Rule 14d-2(a) have occurred and no circumstance shall exist which could reasonably be expected to result in a failure to satisfy any of the Exchange Act) conditions or events set forth in Annex A hereto (the "Offer Conditions"), as promptly soon as reasonably practicable after the date execution hereof (but not in no event later than 15 business days after the fifth (5th) Business Day from and including the date of initial public announcement of this Agreementthe execution hereof) the Purchaser shall, and the Parent shall cause the Purchaser to, commence an offer (the "Offer") to purchase all of the Shares of the Company, at a price of U.S.$13 per Share (the "Per Share Amount"). The obligation of Sub the Purchaser to commence the Offer accept for payment Shares tendered shall be subject only to a minimum of not less than 75% of the outstanding Shares (calculated on a fully diluted basis, but excluding Shares held by or on behalf of the Purchaser or its affiliates and associates (as defined in the CBCA)) on the date of the Offer being validly tendered and not withdrawn (the "Minimum Condition") and to the condition that none satisfaction of the events set forth other Offer Conditions. The Purchaser expressly reserves the right, in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their its sole discretion), to waive or reduce the Minimum Condition and to waive any other Offer Condition, to increase the obligation of Sub to accept for payment, purchase and pay for Shares tendered Per Share Amount payable pursuant to the Offer shall be subject only or to the satisfaction (or waiver by Parent or Sub make any other changes in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms and conditions of the Offer except (provided that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price Per Share Amount payable in the Offer, (ii) changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesConditions). Subject The Purchaser covenants and agrees that, subject to the terms and conditions of this Agreement and the Offer, including the Offer and this AgreementConditions, Sub shallunless the Company otherwise consents in writing, and Parent shall cause Sub to, the Purchaser will accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable not later than 10 days following the valid tender thereof without interest, subject to any withholding later of Taxes required by applicable Law or in accordance with Sections 3.2(i(x) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days 35th day after the commencement of the Offer and (determined pursuant to Rule 14d-1(g)(3y) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date satisfaction of the Offer any of Conditions which have not been waived by the events set forth in Annex A shall have occurred and be continuingPurchaser, until such time as such event or events shall no longer exist, and (ii) provided that the Purchaser may extend the Offer for any period required by any rule, regulation, interpretation or position of time thereafter. It is agreed that the Offer Conditions are for the benefit of the SEC Purchaser and may be asserted by the Purchaser, regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser or the staff thereof applicable Parent not inconsistent with the terms hereof), or may be waived by the Purchaser, in whole or in part at any time and from time to the Offertime, in its sole discretion. IfThe Purchaser may, at the Initial Expiration Time any time, transfer or subsequent expiration time related assign to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions corporations directly or indirectly wholly owned by the Parent EXHIBIT 99(a) - - - - - (3 of 56) the right to purchase all or any portion of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger properly withdrawn pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (but any such transfer or assignment shall not relieve the Purchaser of its obligations under the Offer or prejudice the rights of tendering shareholders to receive payment for Shares validly tendered and if accepted for payment. Without limiting the Parent's other obligations under this Agreement, the Parent unconditionally guarantees to the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 the performance by the Purchaser of each of its obligations under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodthis Agreement.
(db) As soon as reasonably practicable on the date the Offer is commenced, Parent and Sub the Purchaser shall file (i) with the SEC Director appointed under the CBCA (the "Director") and with the Ontario Securities Commission and other provincial and territorial securities commissions or similar authorities in Canada and the stock exchanges in Canada on which the Shares are listed or traded (the "Canadian Securities Authorities") a Tender takeover bid offer and circular (together with all amendments and supplements thereto, the "Offer Statement on Schedule TO and Circular") with respect to the Offer, Offer which shall include the offer to purchase, a form of the related letter of transmittal (the "Letter of Transmittal"), and form of notice of guaranteed delivery (ii) with the United States Securities and all other ancillary Exchange Commission (the "SEC") a Tender Offer documents Statement on Schedule 14D-1F (collectively, together with any all amendments and supplements thereto, the “"Schedule 14D-1F") which shall contain (included as an exhibit) the Offer and Circular and the Letter of Transmittal (the Offer and Circular, Schedule 14D- 1F, Letter of Transmittal and related documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents”"). The Offer Documents will comply Parent, the Purchaser and the Company each agrees promptly to correct any information provided by it for use in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Lawsthat shall have become false or misleading in any material respect. The Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, further 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 applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents and Circular and Schedule 14D-1F as so corrected to be filed with the SEC Director, the Canadian Securities Authorities and the SEC, respectively, and the Offer Documents as so corrected to be disseminated to holders of Shares Shares, in each case as and to the extent required by (i) all applicable federal securities laws in each of the provinces and territories of Canada, the respective regulations and rules under such laws and the applicable by-laws and published policy statements of the Canadian Securities Authorities in such provinces (collectively, the "Canadian Securities Laws") and (ii) applicable United States securities laws. The Parent and the Purchaser will comply with the laws of the Province of Quebec relating to the use of the French language in connection with the Offer Documents to be delivered to shareholders of the Company. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are prior to their being filed with the SEC or disseminated to holders Canadian Securities EXHIBIT 99(a) - - - - - (4 of Shares, 56) Authorities and the SEC. The Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel in writing with any written comments or communications, whether written or oral, that Parent, Sub the Parent and the Purchaser or their counsel may receive from time to time from the Canadian Securities Authorities or the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments.
(c) In the event the Minimum Condition is satisfied within 120 days after the date of the Offer and the Shares tendered under the Offer represent 90% of all of the then outstanding Shares (excluding Shares held by the Parent and its affiliates and its associates), the Purchaser intends to elect to acquire the remainder of the Shares on the same terms as Shares were acquired under the Offer pursuant to the provisions of Section 206 of the CBCA. If the statutory right of acquisition described above is not available, or communicationsif the Purchaser elects not to proceed under such provisions, then the Purchaser will seek to cause a special meeting of shareholders of the Company to be called to consider an amalgamation, or another transaction including a statutory arrangement, involving the Purchaser (or an affiliate of the Purchaser) and the Company for the purposes of enabling the Purchaser to acquire all of the Shares not deposited under the Offer. Any such second stage transaction will be conducted in accordance with the "going private transaction" provisions within the meaning of the regulations to the Securities Act (Ontario), Ontario Securities Commission Policy Statement 9.1 and Quebec Securities Commission Policy Statement Q-27. The Company and its counsel shall Purchaser intends that the consideration offered under any subsequent "going private transaction" proposed by it would be given a reasonable opportunity identical to review any responses to such comments or communications, and Parent and Sub shall give due the consideration to all reasonable additions, deletions or changes suggested thereto by offered under the Company and its counselOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.01 hereof and provided further that the Company is prepared (in accordance with Section 1.02(c)) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof Agreement Date (but not and in any event, subject to the Company being prepared to file the Schedule 14D-9, no later than the fifth ten (5th10) Business Day from and including Days after the date of initial public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")), the Offer to purchase any and all of the outstanding Shares at the Offer Price. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Merger Sub to accept for payment, purchase and payment or pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to (i) the satisfaction (or waiver by Parent or Sub condition that there shall be validly tendered in their sole discretion (but subject accordance with the terms of the Offer, prior to the next sentence)scheduled expiration of the Offer (as it may be extended hereunder) and not properly withdrawn, a number of Shares that, together with the Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully Diluted Shares immediately prior to the Share Acceptance Time (the "Minimum Condition") and (ii) the conditions set forth in such Annex A. Sub II and no other conditions (together with the Minimum Condition, the "Offer Conditions"). Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive waive, in its sole discretion, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer Offer; provided that unless otherwise provided by this Agreement or change previously approved by the terms of Company in writing (which approval may be granted or withheld by the Offer except thatCompany in its sole discretion), without (A) the prior written consent of the Company, Sub Minimum Condition may not waive the condition in clause be waived or amended, (iB) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto II, or which otherwise amends or modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a any manner adverse to the holders of Shares, and (C) the Offer may not be extended except as set forth in this Section 1.01. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer business days (determined pursuant to calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, the "Initial Expiration Date," and such time, or such subsequent time to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the "Expiration Date"). Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub (i) may, in its sole discretion, without the consent of the Company, (i) without limiting Parent's or Merger Sub's obligations under the following sentence, extend the Offer on one or more occasions for any period not exceeding occasions, in consecutive increments of up to ten (10) Business Days each, for any extension, period up to and including the Outside Date if on any then-scheduled expiration date Expiration Date any of the Offer any of the events set forth Conditions have not been satisfied or waived in Annex A shall have occurred and be continuingwriting by Merger Sub (or Parent on its behalf), until such time as such event or events Expiration Date on which all Offer Conditions shall no longer existthen be satisfied or, to the extent permitted, waived and (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof The NASDAQ Stock Market applicable to the Offer. IfParent and Merger Sub agree that except to the extent otherwise agreed in writing by the Company prior to any then-scheduled Expiration Date, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer on one or more occasions, in consecutive increments of up to ten (10) Business Days each, up to and including the Outside Date, if on any then-scheduled Expiration Date any of the Offer Conditions have not been satisfied or waived in writing by Merger Sub (or Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the Outside Date or after the Company delivers, or is required to deliver, to Parent a notice in accordance with Section 5.02 with respect to a Takeover Proposal that has been received at least ten (10) Business Days prior to the Initial then-scheduled Expiration Time Date by the Company, its Subsidiaries, or subsequent any Representative of the Company, except to the extent that prior to the then-scheduled Expiration Date (i) the Takeover Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Takeover Proposal giving rise to such notice, (ii) the Company Board has reconfirmed the Board Recommendation, and (iii) the withdrawal or rejection of such Takeover Proposal or the reconfirmation of the Board Recommendation shall have been publicly announced by the Company. Following expiration time related to an extension of the Offer, including an extension pursuant to this sentenceMerger Sub (or Parent on its behalf) may, any in its sole discretion, provide a subsequent offering period or one or more extensions thereof (a "Subsequent Offering Period") in accordance with Rule 14d-11 of the conditions Exchange Act, if, as of the commencement of such period, there shall not have been validly tendered (without regard to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer has not been satisfied (or waived that number of Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company in accordance with this Agreement)Section 253(a) of the DGCL. Subject to the foregoing, thenincluding the requirements of Rule 14d-11 of the Exchange Act, if requested by and upon the Companyterms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, extend accept for payment and pay for, as promptly as practicable, (1) after the Offer through such time as the Company may specifyExpiration Date, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with properly withdrawn pursuant to the Shares, if any, Offer and/or (2) all Shares validly tendered in any Subsequent Offering Period. The Company agrees that no Shares held by Parent and Sub the Company or any other direct of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code, or indirect wholly owned Subsidiary any provision of Parent (any such wholly owned Subsidiaries of Parentstate, Parent local or foreign Laws relating to Taxes. To the extent that amounts are so withheld and paid over to the appropriate Tax authority by Merger Sub, each a “Parent Company”), constitute less than such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the number holder of Shares required in respect of which such deduction and withholding were made by Merger Sub. Merger Sub shall not terminate the Offer prior to consummate any scheduled Expiration Date without the Merger prior written consent of the Company, except if this Agreement is terminated pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full)8.01. If this Agreement is terminated pursuant to Section 8.01, then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Merger Sub shall, and Parent shall cause Merger Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) , promptly, irrevocably and unconditionally terminate the Offer and shall not acquire the Shares pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Rule 14d-11 under the Exchange Act andapplicable Law, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of tendered Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use that have not then been purchased in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselregistered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall have occurred which would result in a failure to satisfy any of the conditions set forth in ANNEX I hereto, Parent shall cause the Purchaser to and the Purchaser shall, as soon as practicable after the date hereof, and in any event not have been terminated in accordance with Section 8.1, Sub shall later than five (5) business days after the day on which the Purchaser's intention to make the Offer is announced commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer for all of the outstanding Shares at the Per Share Amount. Subject to the Minimum Condition as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from defined in ANNEX I and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub ANNEX I, the Purchaser shall consummate the Offer as soon as legally permissible. Purchaser expressly reserves the right to waive any conditions such condition or to increase the Per Share Amount or, subject to the Offer or change provisions of this Section 1.1, to make other changes in the terms and conditions of the Offer. The Offer except that, without the prior written consent shall be made by means of the Company, Sub may not waive the condition in clause (i) of Annex A an offer to purchase (the “"Offer to Purchase") containing the Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no other conditions except those set forth in ANNEX I hereto, and shall not be amended with respect to any provision thereof set forth in such Annex or the Minimum Condition, with respect to a reduction in the price or change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number or with respect to an extension of Shares to be purchased in the Offer (except as provided in this Section 1.1) without the consent of the Company; provided, however, that Purchaser may extend the expiration date (x) in its sole discretion from time to time, if on the initial scheduled or any extended expiration date of the minimum number Offer the Minimum Condition has not been satisfied, or any of Shares contemplated the other conditions set forth in ANNEX I shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that unless agreed to by the Minimum ConditionCompany, any extended expiration date pursuant to this clause (ivx) imposes may not be later than ninety (90) days from the date of commencement of the Offer, or one hundred twenty (120) days from such date if within such ninety (90) day period a tender offer for at least 20% of the outstanding Shares is commenced by any person who is not an affiliate (as defined under the rules promulgated pursuant to the Securities Act of 1933) of Parent or Purchaser (an "Intervening Tender Offer"), or (y) for a period not to exceed ten (10) business days, notwithstanding that all conditions to the Offer in addition are satisfied as of such expiration date of the Offer, if, immediately prior to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term expiration date of the Offer in a manner adverse to (as it may be extended), the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after Offer, together with the expiration Shares subject to the Option Agreements, without duplication, equal less than 90% of the Offer outstanding Shares and Purchaser expressly irrevocably waives any condition (other than the date Minimum Condition) that subsequently may not be satisfied during such extension of acceptance for paymentthe Offer, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Periodz) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "Commission") or the staff thereof applicable to the Offer. IfWithout limiting the right of Purchaser to extend the Offer pursuant to the provisions of this Section 1.1, in the event that (i) the Minimum Condition shall not have been satisfied or (ii) the conditions set forth in ANNEX I shall not have been satisfied or waived at the Initial Expiration Time scheduled or subsequent any extended expiration time related to an extension date of the Offer, including an extension pursuant to this sentence, any at the request of the conditions Company, the Purchaser shall, and Parent shall cause Purchaser to, extend the expiration date of the Offer in increments of five (5) business days each until the earliest to occur of (x) the obligation satisfaction or waiver of Sub the Minimum Condition or such other condition, (y) the termination of this Agreement in accordance with its terms, and (z) ninety (90) days from commencement of the Offer or one hundred twenty (120) days from such date in the event of an Intervening Tender Offer (unless extended by agreement of the parties). The Purchaser agrees to accept for payment, purchase and pay for all Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time that it is obligated to purchase as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIpromptly as practicable.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall has not have been terminated in accordance with Section 8.1Section 7.01, Sub shall as promptly as practicable after the date hereof, but in no event later than ten Business Days following the date of this Agreement, the Purchaser will commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation of Sub to commence the Offer shall will be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub I hereto (the “Offer Conditions”), except to the extent that Purchaser may (to the extent not prohibited hereby) waive any of the Offer Conditions. The date on which the Purchaser commences the Offer is referred to as the “Offer Commencement Date.”
(b) The Purchaser expressly reserves the right to (i) waive any of the Offer Conditions, (ii) increase the Offer Price and (iii) make any change in the terms of or conditions to the Offer or change not inconsistent with the terms of this Agreement; provided that the Purchaser’s right to waive any Offer except Condition is subject to the last paragraph of Annex I hereto; and provided further, that, without the prior written consent of the Company, Sub may not waive the condition in clause Purchaser will not:
(i) of Annex A (decrease the “Minimum Condition”) or the condition in clause Offer Price;
(ii) amend, modify or waive the Minimum Condition or the conditions set forth in clauses (a), (c)(i) or (c)(ii) of Annex I;
(iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, ;
(iv) imposes conditions to extend or otherwise change the Expiration Time of the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or except as provided herein;
(v) amends change the Maximum Share Number;
(vi) otherwise amend or modify any of the other term terms of the Offer in a manner adverse that adversely affects any holder of Shares in its capacity as such, or that would, individually or in the aggregate, materially impair or prevent or delay beyond the End Date (as extended) Purchaser’s ability to consummate the holders of Shares. Subject to the terms and Offer; or
(vii) impose conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of other than the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the OfferConditions.
(bc) Unless extended as provided in this Agreement, the Offer shall will expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty 20 business days (20) Business Days after the commencement of the Offer (determined pursuant to calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)) after the Offer Commencement Date. Sub may, without Notwithstanding the consent of foregoing: the Company, Purchaser will extend the Offer (i) extend the Offer on for one or more occasions for any period consecutive increments of not exceeding more than ten (10) Business Days for any extensionfrom time to time if, if on any at the then-scheduled expiration date time of the Offer, any of the Offer any of Conditions has not been satisfied or (to the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, extent permitted hereby) waived by the Purchaser and (ii) extend the Offer for any period required by (x) any applicable rule, regulation, interpretation or position of the SEC or the staff thereof applicable or (y) the rules and regulations of the NYSE or Applicable Law; provided that notwithstanding anything herein to the contrary, in no event shall Purchaser be required to extend the Offer beyond the earlier of (A) the End Date (as extended) and (B) the valid termination of this Agreement in accordance with its terms (such earlier occurrence, the “Extension Deadline”). The time when the Offer expires (taking into account any permitted or required extensions in accordance with this Section 2.01(c)) is referred to herein as the “Expiration Time.” The Purchaser will not terminate or withdraw the Offer prior to the then-scheduled expiration time of the Offer unless this Agreement is validly terminated in accordance with its terms. In the event that this Agreement is terminated, the Purchaser will promptly, irrevocably and unconditionally terminate the Offer. IfIn the event that the Offer is terminated, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, Purchaser will not acquire any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied and will cause any depositary acting on its behalf to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement (including Section 2.01(e)) and to the satisfaction or waived waiver of the Offer Conditions in accordance with this Agreement, the Purchaser will (i) accept for payment, as promptly as practicable (and in any event within one Business Day) after the Expiration Time (or, if proration is required under Section 2.01(e), after the final proration factor is determined) all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”, and the date on which the Acceptance Time occurs, the “Offer Closing Date”), and (ii) promptly thereafter (and in any event no later than one Business Day) pay for such Shares.
(i) If and to the extent that a number of Shares in excess of the Maximum Share Number are validly tendered and not withdrawn pursuant to the Offer, then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(cSection 14(d)(6) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waivedExchange Act, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held withdrawn by Parent and Sub or any other direct or indirect wholly owned Subsidiary each tendering holder of Parent Shares will be deemed decreased on a pro rata basis (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”subject to Section 2.01(e)(ii), constitute less than ) based on the number of Shares required validly tendered and not withdrawn by each tendering shareholder (with fractional Shares rounded to consummate the Merger pursuant nearest whole Share) such that the aggregate number of Shares accepted for payment, and paid for, by the Purchaser in the Offer will be equal to Section 2.10 (assuming the exercise of Maximum Share Number. The Parties acknowledge and agree that if such proration is necessary, the Top-Up Option Purchaser will determine the final proration factor in full), then, upon accordance with the applicable expiration time of the Offer, Sub may immediately preceding sentence (and if subject to Section 2.01(e)(ii)) promptly (and in any event within three Business Days) after the Company so requests Sub shall, Offer Closing Date).
(ii) The Parties acknowledge and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) agree that the final proration factor for the Offer will be determined in accordance with Rule 14d-11 under 14d-8 of the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodAct.
(df) As soon as practicable on the date On the Offer is commencedCommencement Date, Parent and Sub shall the Purchaser will (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto, which shall and including all exhibits thereto, the “Schedule TO”) that will include the summary term sheet required thereby and, as exhibits, the offer to purchase, a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents a summary advertisement (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent ) and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as to the extent required by applicable U.S. federal securities Lawslaws. Parent and Sub, on The Purchaser will use its reasonable best efforts to ensure that the one handSchedule TO, and any amendments or supplements thereto comply in all material respects with the Company, on rules and regulations promulgated by the other hand, agree SEC under the Exchange Act. Each of the Purchaser and the Company agrees to promptly respond to any comments of the SEC or its staff and to promptly correct any information provided by it or on its behalf for use in the Schedule TO and the Offer Documents if it shall have and to the extent that such information has become (or has become known to be) false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees to take all steps necessary The Purchaser will use its reasonable best efforts to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares as Shares, in each case to the extent required by applicable U.S. federal securities Lawslaws or the rules and regulations of the NYSE. The Company will furnish to the Purchaser the information relating to the Company required by the Exchange Act to be set forth in the Schedule TO and the Offer Documents. The Company and its counsel shall will be given a reasonable opportunity to review and comment on the Schedule TO and any Offer Documents Document each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent the Purchaser will give reasonable and Sub shall give due good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments timely made thereon by the Company and its counsel. In addition, Parent and Sub agree to The Purchaser will provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or communications. The Company other communications and its counsel shall be given (ii) a reasonable opportunity to review participate in the response of the Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration will be given), including by using reasonable best efforts to give the Company the opportunity to participate with the Purchaser and its counsel in any responses substantive discussions or meetings with the SEC.
(g) The Purchaser shall use its reasonable best efforts to such comments or communicationskeep the Company reasonably informed on a reasonably current basis of the status of the Offer, including with respect to the number of Shares that have been validly tendered and not validly withdrawn in accordance with the terms of the Offer, and Parent and Sub shall give due consideration with respect to all any material developments with respect thereto and, upon the Company’s written request, use its reasonable additions, deletions or changes suggested thereto by best efforts to provide the Company as soon as practicable with the most recent report then available from the depositary agent detailing the number of Shares that have been validly tendered and its counselnot validly withdrawn in accordance with the terms of the Offer.
Appears in 1 contract
Sources: Transaction Agreement (Tether Holdings, S.A. De C.V.)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) a failure to satisfy any of the Exchange Act) the Offer conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable after the date hereof (hereof, but not in no event later than five business days following the fifth (5th) Business Day from and including the date of initial public announcement of the terms of this Agreement, commence an offer (the "Offer") to purchase all of the outstanding shares of common stock, par value $.01 per share (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company at a price of $30.50 per Share (including such associated Rights), net to the seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer there shall be subject only to the satisfaction (or waiver by Parent or Sub validly tendered in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change accordance with the terms of the Offer except prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. 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 prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I, changes or which otherwise modifies waives the conditions Minimum Condition, extends the Offer (except as set forth in such Annex A the following sentence), or (v) amends makes any other term of change to any condition to the Offer set forth in a manner Annex I which is adverse to the holders of Shares. Subject to the terms and conditions of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Sub shall, and Parent Merger Subsidiary shall cause Sub to, accept for payment, purchase and pay 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 (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all such Shares promptly after acceptance; provided that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) Merger Subsidiary may extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionif, if on any then-at the scheduled expiration date of the Offer or any extension thereof any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied, until such time as such event conditions are satisfied or events shall no longer existwaived, and (ii) Merger Subsidiary may extend the Offer for any a further period required by any rule, regulation, interpretation or position of time of not more than 20 business days to meet the SEC or the staff thereof applicable objective (which is not a condition to the Offer. If) that there be validly tendered, at in accordance with the Initial Expiration Time or subsequent expiration time related to an extension terms of the Offer, including an extension pursuant prior to this sentence, any the expiration date of the conditions Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Fully Diluted Shares. Subject to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), thenSection 9.1, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions condition set forth in clause (v)(b) or (v)(cii) of the first paragraph of Annex A I is not satisfied as of the date the Offer would otherwise have not then been satisfied or waived in accordance with this Agreement expired, Merger Subsidiary shall extend the Offer until the earlier of (other than any such conditions i) the date that are not so satisfied or waived under circumstances in which is 30 days after the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by first scheduled expiration date and (ii) the Company through date the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions condition set forth in clause (v)(b) or (v)(cii) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.first paragraph
Appears in 1 contract
Sources: Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated ---------- Agreement, as promptly as practicable but in accordance with Section 8.1no event later than November 30, 1998, Sub shall, and Parent shall commence (cause Sub to, commence, within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act) "), the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)------------ Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. the attached Exhibit ------- C (the "Offer Conditions") (any of which may be waived in whole or in part by - ---------------- Sub in its sole discretion, except that Sub shall not waive the Minimum Condition (as defined in Exhibit C) without the consent of the Company) and --------- subject to the rights of Parent or Sub to terminate this Agreement as provided in Section 8.
1. Sub expressly reserves the right to waive any conditions to the Offer or change modify the terms of the Offer Offer, except that, without the prior written consent of the Company, Sub may shall not waive the condition in clause (i) reduce the number of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in Shares subject to the Offer, (ii) changes reduce the Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased payable in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (ivvi) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends amend any other term of the Offer in a any manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff --- thereof applicable to the Offer and (iii) if all Offer Conditions are satisfied or waived but the number of Shares tendered is at least equal to 75%, but less than 90%, of the then outstanding number of Shares, extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Sub agree that if at any scheduled expiration date of the Offer, the Minimum Condition, the HSR Condition (as defined in Exhibit C) or --------- either of the conditions set forth in paragraphs (e) or (f) of Exhibit C shall --------- not have been satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (a), (b), (c), (d) and (g) shall then be satisfied, at the request of the Company (confirmed in writing), Sub shall extend the Offer from time to time, subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for for, all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer (Offer, and in any event in compliance with the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for obligations respecting prompt payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to Rule 14e-1(c) under the OfferExchange Act.
(b) Unless extended as provided in this Agreement, the Offer shall expire on On the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the of commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D- ------------ 1") with respect to the - Offer, which shall include the contain an offer to purchase, form of the purchase and a related letter of transmittal and form of notice of guaranteed delivery summary advertisement (such Schedule 14D-1 and all other ancillary the documents included therein pursuant to which the Offer documents (collectivelywill be made, together with any supplements or amendments and supplements thereto, the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. , and Parent and Sub --------------- shall cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal Federal securities Lawslaws. Parent and SubParent, on the one hand, Sub and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and Parent and Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal Federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are filed prior to their filing with the SEC or disseminated dissemination to holders the shareholders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselCompany. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The and to cooperate with the Company and its counsel in responding to any such comments.
(c) Parent shall provide or cause to be given provided to Sub on a reasonable opportunity timely basis the funds necessary to review any responses to such comments or communicationsaccept for payment, and Parent pay for, any Shares that Sub becomes obligated to accept for payment, and Sub shall give due consideration pay for, pursuant to all reasonable additions, deletions or changes suggested thereto by the Company and its counselOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.1Annex I hereto, Sub as promptly as practicable after the date hereof but in no event later than 15 Business Days following the date hereof, Merger Subsidiary shall commence (within the meaning of Rule 14d-2(a14d-2 under the ▇▇▇▇ ▇▇▇) an offer (the “Offer”) to purchase any and all of the Exchange Act) outstanding Shares at a price of $0.35 per Share, net to the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses (v)(a) or (v)(b) Offer, prior to the expiration date of Annex A hereto shall have occurred and be continuing (the Offer and not waived withdrawn, a number of Shares that, together with the Shares then owned by Parent or Sub in their sole discretion)and/or Merger Subsidiary, represents at least 65% of the Shares outstanding, excluding Restricted Stock (the “Minimum Condition”) and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I hereto. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except that, without Offer; provided that (i) the Minimum Condition may be waived only with the prior written consent of the Company, Sub may which shall not waive the condition in clause (i) of Annex A (the “Minimum Condition”) be unreasonably withheld or the condition in clause (ii) or (iii) of Annex A, and no change delayed in the Offer may be made which (i) decreases event that a majority of the Offer Price payable in the OfferShares have been tendered, (ii) any material change to the terms and conditions of the Offer may only be made with the prior consent of the Company, which shall not be unreasonably withheld or delayed and (iii) no change may be made that changes the form of consideration to be paid in paid, decreases the Offer, (iii) reduces price per Share or the maximum number of Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I. Notwithstanding the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub mayforegoing, without the consent of the Company, Merger Subsidiary shall have the right to extend the Offer (i) extend from time to time if, at the Offer on one scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer exist, waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law and (iii) Table of Contents on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer. If, at together with the Initial Expiration Time or subsequent expiration time related Shares then owned by Parent, represents more than the Minimum Condition but less than 90% of the outstanding Shares; provided that under no circumstances shall Merger Subsidiary, without the prior consent of the Board of Directors of the Company, which consent shall not be unreasonably withheld, extend the Offer to an extension expiration date more than 50 Business Days beyond the date that the Offer is commenced. Following expiration of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Merger Subsidiary may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act and, if applicable and 1934 Act. Subject to the extent permitted under such foregoing, including the requirements of Rule 14d-11, thereafter extend such subsequent offering periodand upon the terms and subject to the conditions of the Offer, Merger Subsidiary 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 (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, but no later than 15 Business Days after the public announcement of the terms of this Agreement, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include the offer summary term sheet required thereby and, as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent ) and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities LawsShares. Parent and SubEach of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and the Offer Documents before they are the Schedule TO is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In additionthe event that this Agreement has been terminated pursuant to Article 11, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to Merger Subsidiary shall promptly terminate the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review without accepting any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselShares for payment.
Appears in 1 contract
The Offer. (a) Provided that this Subject to compliance with the four conditions listed below, as promptly as practicable, but in no event later than Tuesday, April 4, 2000, or, if later, as soon as each of the four conditions listed below has been satisfied, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer for ------------ any and all of the Shares at the Offer Price, which Offer shall be subject to the conditions set forth in Annex A (as defined below):
(i) This Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence Article VIII;
(within the meaning of Rule 14d-2(aii) Each member of the Exchange Act) Board of Directors of the Offer Company on and as promptly as practicable after of the date hereof shall have entered into a binding agreement with Parent and Merger Sub obligating him or her (but x) to tender all shares held by him or her into the Offer unless the Board determines not later than to recommend the fifth Offer pursuant to Section 1.2(b) or Section 6.2(b), and (5thy) Business Day to appoint new members to and to resign from the Board of Directors to the extent required in order to allow the Company to comply with Section 1.3(a);
(iii) The employment agreement between the Company and including ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the date of initial amendment to the employment agreement between the Company and H. ▇▇▇▇ ▇▇▇▇▇, substantially in the form previously conveyed by Parent to the Company (together, the "Employment Agreements"), shall have been executed and remain in effect; and
(iv) The Company shall be prepared to comply with Sections 1.2(b) and 6.3(c). The parties agree such public announcement shall occur promptly after the execution and delivery of this Agreement). The obligation of Merger Sub to commence the Offer accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that none more than a majority of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred issued and outstanding Shares be continuing (validly tendered and not waived by Parent or Sub in their sole discretionwithdrawn (the "Minimum Condition"), and (ii) the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other ----------------- conditions set forth in such Annex A. A hereto ("Annex A"). Merger Sub expressly ------- reserves the right to waive any conditions to increase the Offer Price or change to make any other changes in the terms and conditions of the Offer except Offer; provided, however, that, without unless previously approved by the prior written consent Board of Directors of the Company, Sub may not waive the condition in clause (i) of Annex A Company (the “Minimum Condition”"Company's --------- Board") or the condition in clause (ii) or (iii) of Annex Awriting, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferPrice, ----- (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies A, (v) amends the conditions set forth in such Annex A or to broaden the scope of such conditions, (vvi) amends any other term of the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b), or (viii) amends the Minimum Condition. Subject It is agreed that the conditions set forth in Annex A, other than the Minimum Condition, are for the sole benefit of Parent and Merger Sub and may be waived by Parent or Merger Sub, in whole or in part at any time and from time to time in its sole discretion; the terms and conditions Minimum Condition may only be waived by Parent with the prior written approval of the Offer and this Agreement, Sub shall, and Company's Board. The failure by Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant at any time to the Offer as soon as practicable after the expiration exercise any of the Offer foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or any of its Subsidiaries (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”as defined in Section 9.2) or (will be tendered in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this AgreementSubject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement date the Offer is commenced (the initial "Expiration Date", and any --------------- expiration time and date established pursuant to an authorized extension of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Actas so extended, also an "Expiration Date"). Sub may; provided, however, that --------------- without the consent of the Company's Board, Merger Sub may (i) from time to time extend the Offer on one or more occasions for any period (each such individual extension not exceeding ten to exceed five (105) Business Days for any extensionafter the previously scheduled Expiration Date), if on any then-at the scheduled expiration date Expiration Date of the Offer any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer exist, and waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at ; or (iii) --- extend the Initial Expiration Time or Offer for a subsequent expiration time related offering period (as provided in Rule 14d-11 under the Exchange Act) of up to an extension twenty (20) Business Days in order to acquire over 90% of the Offeroutstanding Shares, including an provided that no such extension pursuant to this sentence, for a subsequent offering period shall occur unless Merger Sub has purchased Shares in number fulfilling the Minimum Condition and all additional shares tendered through the period of the last Expiration Date. Merger Sub agrees that if any of the conditions to the obligation Offer set forth on Annex A other than the last two conditions thereon (conditions (a) and (b) on page A-2 of this Agreement) are not satisfied on any scheduled Expiration Date, then if all such conditions are reasonably capable of being satisfied prior to May 31, 2000, Merger Sub shall extend the Offer from time to time (each such individual extension not to exceed ten (10) Business Days after the previously scheduled Expiration Date) until such conditions are satisfied or waived; provided, that Merger Sub shall not be required to extend the Offer beyond, and without the approval of the Company's Board the Offer will not be extended beyond, May 31, 2000. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement)for, then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger withdrawn pursuant to Section 2.10 (assuming the exercise of Offer that Merger Sub becomes obligated to accept for payment and pay for pursuant to the Top-Up Option in full)Offer, then, upon as promptly as practicable after the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(dc) As soon as practicable on the date the Offer is commenced, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall include contain as an ----------- exhibit or incorporate by reference the offer Offer to purchase, form Purchase (or portions thereof) and forms of the related letter of transmittal and form of notice of guaranteed delivery summary advertisement. Parent and Merger Sub agree that the Schedule TO, the Offer to Purchase and all other ancillary amendments or supplements thereto (which together constitute the "Offer documents (collectively, together with any amendments and supplements thereto, the “Offer ----- Documents”). The Offer Documents will ") shall comply in all material respects with the Exchange Act and the --------- rules and regulations thereunder and other applicable provisions of the Exchange ActLaws (as defined in Section 5.1(i)). Parent and Merger Sub further agree that the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall cause not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the written information provided by the Company for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders make the statements therein, in light of Shares as required by applicable federal securities Lawsthe circumstances under which they were made, not misleading. Parent and SubEach of Parent, on the one hand, Merger Sub and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and Parent and Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares the Company's stockholders, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed prior to the filing thereof with the SEC or disseminated to holders of Shares, and Parent and SEC. Merger Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree agrees to provide the Company and its counsel with any comments (in writing if such comments are received orally or communications, whether a copy of any written or oral, that Parent, comments) Merger Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
The Offer. (a) 2.1.1 Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article VIII, and that none of the events described in the conditions set forth in Annex A shall have occurred and be existing, Parent shall cause Merger Sub to commence, and Merger Sub shall commence (within the meaning of the applicable rules and regulations of the Commission), the Offer at the Per Share Amount as promptly as reasonably practicable after the date hereof, but in no event later than ten business days after the date of this Agreement. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer shall be the twentieth business day from and after the date the Offer is commenced (as determined pursuant to Rule 14d-2(a) of 14d-2 promulgated under the Exchange Act) (the "Initial Expiration Date"), unless this Agreement is terminated in accordance with the terms hereof, in which case the Offer as promptly as practicable after (whether or not previously extended in accordance with the date hereof (but not later than the fifth (5thterms hereof) Business Day from and including the shall expire on such date of initial public announcement of this Agreement)termination. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Merger Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in that at least the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased that, when combined with the Shares already owned by Parent and its direct or indirect Subsidiaries, 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 (other than the Rights (as defined in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (ivRights Agreement)) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares have been validly tendered and not withdrawn pursuant prior to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i"Minimum Condition") and (j). Parent shall provide ii) the satisfaction or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement waiver of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events other conditions set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIhereto.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1SECTION 7.1 herein and none of the events set forth in ANNEX A shall have occurred and be existing, Sub as promptly as practicable (but in no event later than ten (10) days after the public announcement of the execution of this Agreement), Purchaser shall commence (within the meaning of Rule 14d-2(a) of 14d-2 promulgated under the Exchange Act) a cash tender offer to acquire all of Shares at the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Price. The obligation of Sub to commence the Offer shall be subject only Subject to the condition that none of Minimum Condition, the events conditions set forth in clauses (v)(a) or (v)(b) of Annex ARTICLE 6 hereof and subject to the other conditions set forth in ANNEX A hereto hereto, Purchaser shall have occurred consummate the Offer in accordance with its terms and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase payment and promptly pay for Shares tendered pursuant to the Offer as soon as Purchaser is legally permitted to do so under applicable law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to Minimum Condition and the next sentence)) of the other conditions set forth in such Annex A. Sub ANNEX A hereto (collectively, the "Offer Conditions") and shall reflect, as appropriate, the other terms set forth in this Agreement.
(b) Purchaser expressly reserves the right to waive any conditions to the Offer or change modify the terms and conditions of the Offer Offer, except that, without the prior written consent of the Company, Sub may not waive the condition in clause Company neither Parent nor Purchaser shall (i) of Annex A (the “Minimum Condition”) amend or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by waive the Minimum Condition, (ii) decrease the Offer Price, (iii) change the form of consideration, (iv) imposes conditions to decrease the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A number of Shares sought, or (v) amends amend or impose any other term condition of the Offer in a any manner adverse to the holders of the Shares. Subject Notwithstanding the foregoing, Purchaser may, without the consent of the Company (x) increase the amount it offers to pay per Share in the terms and conditions Offer, and, in connection therewith, extend the period of the Offer and this Agreementto the extent required by law, Sub shall(y) extend the Offer for a period not to exceed ten (10) business days, and Parent shall cause Sub tonotwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer, accept for paymentif, purchase and pay for all immediately prior to the expiration date of the Offer (as it may be extended), the Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after constitute less than ninety percent (90%) of the outstanding Shares and (z) from time to time, in its sole discretion, extend the expiration date if on the initial scheduled expiration date of the Offer (Offer, which shall be the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that which is twenty (20) Business Days business days after the date the Offer is commenced, all conditions to the Offer will not have been satisfied or waived. Purchaser shall extend the Offer from time to time until a date which is not more than sixty (60) business days after commencement of the Offer (determined pursuant if, and to Rule 14d-1(g)(3) under the Exchange Act). Sub mayextent that, without at the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled initial expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an or any extension pursuant to this sentencethereof, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are set forth in ANNEX A shall not have been satisfied or waived, but . Any extensions of the number period of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary Offer shall be subject to termination of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger this Agreement pursuant to Section 2.10 (assuming 7.
1. The Company agrees that no Shares held by the exercise Company will be tendered pursuant to the Offer. Except as otherwise required by the Shareholders' Agreement, the Company's stockholders shall retain their withdrawal rights during any extension of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such Offer or subsequent offering period.
(dc) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include . The Schedule TO will contain or incorporate by reference the offer Offer to purchase, Purchase and a form of the related letter of transmittal transmittal, summary advertisement and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments documents. Parent and supplements thereto, Purchaser will take all steps necessary to cause the “Offer Documents”). The Offer Documents will comply in all material respects to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable provisions federal securities laws. Notwithstanding the foregoing, Parent and Purchaser shall, at a minimum, disseminate the Offer Documents by (i) delivery of the Offer Documents to the beneficial holders of the Shares in compliance with Rule 14d-4(a)(3) promulgated under the Exchange Act and (ii) summary publication appearing in The Wall Street Journal or similar newspaper with national circulation, in compliance with Rule 14d-4(a)(2) promulgated under the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to respect, and Purchaser will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to Purchaser will provide the Company and its counsel in writing with any comments or other communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or other communications. The , and to consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to any responses to such comments or other communications.
(d) The parties agree that the Offer Conditions are for the sole benefit of Purchaser and, except as provided in SECTION 1.1(B), may be asserted by Purchaser regardless of the circumstances giving rise to such Offer Condition or may be waived by Purchaser, in whole or in part, at any time and from time to time, in its sole discretion; provided however, that neither Purchaser nor Parent may assert the nonsatisfaction of any Offer Condition if such nonsatisfaction is the result of Purchaser or Parent's breach of any representation, warranty, agreement or covenant contained herein. The failure by Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to other facts or circumstances, and Parent each such right shall be deemed an ongoing right that may be asserted at any time and Sub shall give due consideration from time to all reasonable additions, deletions or changes suggested thereto by the Company and its counseltime.
Appears in 1 contract
Sources: Merger Agreement (U S Realtel Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 hereof and none of the events set forth in Annex I shall have occurred and be existing, Sub as promptly as practicable (but in no event later than five business days after the public announcement of the execution of this Agreement), the Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as practicable at the Offer Price, subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which represents at least 51% of the Shares then outstanding on a fully diluted basis (after giving effect to the date hereof (but not later than 7 conversion or exercise of all outstanding options, warrants and other rights and securities exercisable or convertible into Shares) the fifth (5th) Business Day from "Minimum Condition" and including to the date of initial public announcement of this Agreement)other conditions set forth in Annex I hereto, and shall consummate the Offer in accordance with its terms. The obligation obligations of Sub the Purchaser to commence accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), Minimum Condition and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves I hereto. The Offer shall be made by means of an offer to purchase (the right "Offer to waive any conditions to the Offer or change Purchase") containing the terms of the Offer except thatset forth in this Agreement, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes Condition and the other conditions to the Offer in addition to those set forth in Annex A hereto I hereto. The Purchaser shall not amend or which otherwise modifies waive the conditions set forth in such Annex A Minimum Condition and shall not decrease the Offer Price or (v) amends decrease the number of Shares sought, or amend any other term condition of the Offer in a any manner adverse to the holders of Sharesthe Shares without the written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer, which shall be twenty (20) business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the expiration date. Subject to The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub toOffer, accept for payment, purchase payment and pay for all Shares validly tendered as soon as it is legally permitted to do so under applicable law; provided, however, that if, immediately prior to the initial expiration date of the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration equal less than 90% of the Offer (the date of acceptance for paymentoutstanding Shares, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) Purchaser may extend the Offer on one or more occasions for any a period not exceeding to exceed ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) business days, in which case the Company may (if notwithstanding that all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number as of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time date of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance The Primary Borrower, ▇▇▇▇▇ 2 and Bidco each undertake with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) each of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer Finance Parties that it shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thatshall procure that Bidco shall, without the prior written consent of the Company, Sub may not waive the condition in clause as applicable):
(i) until the earlier of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer lapses or is commencedfinally closed, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the Code, the Financial Services ▇▇▇ ▇▇▇▇ and the Act and all other applicable provisions laws and regulations relevant in the context of the Exchange Act. Parent and Sub shall cause Offer;
(ii) provide the Facility Agent with such information regarding the progress of the Offer Documents as it may reasonably request and, provided no breach of the Code would result, all material written advice given to it in respect of the Offer;
(iii) not declare the Offer unconditional at a level of acceptances below that required by Rule 10 of the Code;
(iv) ensure that at no time shall circumstances arise whereby a mandatory offer is required to be disseminated made by the terms of Rule 9 of the Code in respect of the Target Shares;
(v) not, without the prior consent of the Arrangers (acting on the instructions of the Majority Banks), waive, amend or agree or decide not to holders enforce, in whole or in part, the conditions of Shares as the Offer set out in paragraphs (c) (Referral) or (b) (Coalco Disposal Agreement) of Appendix 1 to the Press Release;
(vi) not, without the prior consent of the Arrangers (acting on the instructions of the Majority Banks), such consent not to be unreasonably withheld or delayed, waive, amend (but not including extending the Offer period, which shall be at the Primary Borrower's discretion provided that the Offer is closed within the period required by applicable federal securities Laws. Parent clause 10.4(f) below) or agree or decide not to invoke, in whole or in part, in any material respect, any of the other material conditions of the Offer (and Subthe Primary Borrower, on ▇▇▇▇▇ 2 and Bidco acknowledge that the one handtotal Indebtedness of the Target Group requiring to be refinanced, and the Companyamount of any contingent liabilities of the Target Group which would or might crystallise upon the Offer becoming unconditional, are material), provided that the Primary Borrower, ▇▇▇▇▇ 2 and Bidco shall not be in breach of this clause (vi) if they fail to invoke a condition of the Offer because the Takeover Panel has directed that they may not do so.
(b) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco acknowledges and confirms to the Finance Parties that if any event or circumstance occurs which under the conditions of the Offer may entitle Bidco to lapse the Offer, Bidco will promptly notify the Facility Agent and if in the reasonable opinion of the Majority Banks such event or circumstance would have a material and adverse affect on the ability of the Borrowers to comply with their material obligations under this Agreement (or the adequacy of the facilities available for refinancing indebtedness or other handliabilities of the Target Group) and the Facility Agent acting on the instructions of the Majority Banks so requests, agree Bidco will promptly seek the consent of the Takeover Panel to promptly correct any information provided by it for use lapse the Offer. If the Takeover Panel consents to Bidco's lapsing the Offer in the Offer Documents if it light of such event or circumstance, Bidco shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause then lapse the Offer Documents promptly.
(c) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco shall keep the Arrangers informed and consult with them as so corrected to:
(i) the terms of any undertaking or assurance proposed to be filed given by it, any of its Affiliates or any member of the Target Group to the Director General, the Director General of Gas Supply or the Secretary of State for Trade and Industry in connection with the SEC Offer;
(ii) the terms of any modification to any of the Licences proposed in connection with the Offer;
(iii) any terms proposed in connection with any authorisation or determination necessary or appropriate in connection with the Offer; If the Majority Banks (acting reasonably) state that in their opinion such proposed undertakings(s), assurance(s), modification(s) and/or term(s), or compliance therewith, would materially and disseminated adversely affect the ability of the Group to holders comply with its material obligations under the Finance Documents, Bidco shall promptly request the Takeover Panel to confirm (and shall use its reasonable endeavours to ensure that the Takeover Panel does confirm) that the Takeover Panel will not object to the lapsing of Shares the Offer as required by applicable federal securities Laws. The Company and its counsel shall a result of the non-satisfaction of whichever of the conditions in Appendix 1 to the Press Release is relevant, provided that Bidco will not be obliged to lapse the Offer as a result of any proposed modifications of any Licence or any proposed undertakings or assurances from the Primary Borrower, ▇▇▇▇▇ 2, Bidco or any member of the Target Group to be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s Director General to the extent that such modifications, undertakings or Sub’s, assurances (as the case may be) are no more onerous than those set out and required by the Director General from Pacificorp and/or the Target Group in accordance with the terms of the Monopolies and Mergers Commission Report dated 19 December 1997 into the original Pacificorp offer for the Target. If the Takeover Panel gives a confirmation substantially in those terms, receipt Bidco shall at the earliest opportunity declare the Offer lapsed by reason of the non- fulfilment of such comments condition(s).
(d) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco acknowledges and confirms to the Finance Parties that the Offer, or communicationsan accompanying circular to shareholders of the Target, should also contain a super class one resolution to be passed by the shareholders of the Target, seeking approval of the completion of the Coalco Disposal Agreement with effect on and from the Unconditional Date. The Company Where the context permits, all references in this Agreement (and its counsel in the Offer) to the Offer being accepted and/or becoming unconditional shall be given construed to include such approval being granted.
(e) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Bidco undertakes to the Finance Parties that within 15 days of the date on which acceptances of the Offer are received from holders of not less than 90% of the Target Shares to which the Offer relates, Bidco shall procure that a reasonable opportunity director of Bidco issues a statutory declaration pursuant to review any responses section 429(4) of the Companies ▇▇▇ ▇▇▇▇, gives notice to such comments or communicationsall remaining holders of the Target Shares that it intends to acquire their shares pursuant to section 429 of the Companies ▇▇▇ ▇▇▇▇, and Parent Bidco shall subsequently purchase all such shares.
(f) Each of the Primary Borrower, ▇▇▇▇▇ 2 and Sub Bidco undertakes to the Finance Parties that Bidco shall in any event give due consideration notice to all reasonable additionsclose the Offer no later than 120 days after the date of this Agreement, deletions or changes suggested thereto by unless the Company and its counselArrangers agree in their absolute discretion to extend such period.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 7.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred or be existing, Purchaser shall commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. Purchaser shall not, without the consent of the Special Committee, accept for payment any Shares tendered pursuant to the Offer unless at least a majority of the then issued and be continuing (outstanding Shares, without regard to the Parent Shares, shall have been validly tendered and not waived by Parent or Sub in their sole discretionwithdrawn prior to the expiration of the Offer (the "Minimum Condition"), and the . The obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the Minimum Condition and the other conditions set forth in such Annex A. Sub A hereto. Purchaser expressly reserves the right to waive any conditions such condition (except the Minimum Condition), to increase the Offer or change Per Share Amount and to make any other changes in the terms and conditions of the Offer except Offer; provided, however, that, without the prior written consent of the Special Committee and, to the extent required by the Company's Articles of Incorporation, Sub may the approval of a majority of the "Disinterested Directors" (as defined in the Company's Articles of Incorporation), Purchaser will not waive the condition in clause (i) of Annex A (decrease the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferPer Share Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces reduce the maximum number of Shares to be purchased in the Offer or Offer, (iii) change the minimum number form of Shares contemplated by the Minimum Conditionconsideration payable in the Offer, (iv) imposes add to, modify or supplement the conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends make any other term change in the terms or conditions of the Offer in a manner which is materially adverse to the holders of Shares. Subject to Notwithstanding the terms and conditions of the Offer and this Agreementforegoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and event that all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events conditions set forth in Annex A A, including the Minimum Condition, shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawnwithdrawn pursuant to the Offer, when taken together with the Parent Shares, if anydoes not constitute at least 80% of the then issued and outstanding Shares (the "Extension Right Condition"), held by Parent Purchaser may extend the Offer for a period or periods (the "Extension Periods") aggregating not more than 20 business days after the later of (x) the initial expiration date of the Offer and Sub (y) the date on which all other conditions set forth in Annex A shall have been satisfied or waived. If, at the beginning of the first Extension Period, all conditions set forth in Annex A, including the Minimum Condition, were satisfied or waived and, at the expiration of the last Extension Period, the conditions set forth in paragraphs (a) and (b) of Annex A and the Minimum Condition are satisfied or waived, then, regardless of whether the Extension Right Condition or any other direct of the conditions set forth in paragraphs (c), (d), (e), (f), (g), (h) and (i) of Annex A are satisfied, Purchaser shall accept for payment and pay 9 3 for all Shares validly tendered and not withdrawn prior to the expiration of the last Extension Period. For purposes of the immediately preceding sentence, the conditions set forth in paragraph (a) of Annex A shall be deemed satisfied or indirect wholly owned Subsidiary waived at the expiration of Parent the last Extension Period unless, after the beginning of the first Extension Period, an action or proceeding of the type described in paragraph (any a) of Annex A shall have been instituted or the complaint in an action or proceeding of the type described in paragraph (a) of Annex A pending prior thereto shall have been amended, supplemented or modified after such wholly owned Subsidiaries beginning in a manner that, in the reasonable judgment of Parent, Parent and Subis reasonably likely to result, each a “Parent Company”)directly or indirectly, constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise in any of the Top-Up Option consequences referred to in fullsuch paragraph (a). The Per Share Amount shall, thensubject to any applicable withholding of taxes, be net to each seller in cash, upon the applicable terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition and the Extension Right Condition), Purchaser shall pay, as promptly as practicable after expiration time of the Offer, Sub may (for all Shares validly tendered and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodnot withdrawn.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated and subject to the terms hereof, as promptly as practicable, but in accordance with Section 8.1no event later than five (5) Business Days after the public announcement of the execution hereof by the parties, Sub Parent shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer for any and all of the Exchange Act) Shares, at the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Price. The obligation of Sub Parent to commence the Offer accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that none at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options) be validly tendered (the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion"Minimum Condition"), and (ii) the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub Parent expressly reserves the right to waive any conditions to increase the Offer Price or change to make any other changes in the terms and conditions of the Offer except (provided that, without unless previously approved by the prior written consent of the CompanyCompany in writing, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the OfferPrice, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies A, (v) amends the conditions set forth in such Annex A or to broaden the scope of such conditions, (vvi) amends any other term of the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b)), or (viii) amends the Minimum Condition. Subject It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and may be waived by Parent, in whole or in part at any time and from time to time, in its sole discretion other than the terms and conditions Minimum Condition, as to which prior written Company approval is required. The failure by Parent at any time to exercise any of the Offer foregoing rights shall not be deemed a waiver of any such right and this Agreement, Sub shall, each such right shall be deemed an ongoing right 7 which may be asserted at any time and Parent shall cause Sub to, accept for payment, purchase and pay for all from time to time. The Company agrees that no Shares validly held by the Company or any of its Subsidiaries (as defined in Section 9.2) will be tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this AgreementSubject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of date the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub mayis commenced; provided, however, that without the consent of the Company's Board of Directors, Parent may (i) from time to time extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionOffer, if on any then-at the scheduled expiration date of the Offer any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer exist, and waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time ; or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, iii) extend the Offer through such time as for any reason on one or more occasions for an aggregate period of not more than twenty (20) Business Days beyond the Company may specify, which time shall latest expiration date that would otherwise be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in permitted under clause (v)(bi) or (v)(cii) of Annex A this sentence if on such expiration date there shall not have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions tendered at least 90% of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate)outstanding Shares. Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If Parent agrees that if all of the conditions to the Offer set forth on Annex A are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied prior to October 31, 1997, Parent shall extend the Offer from time to time until such conditions are satisfied or waived, but provided that Parent shall not be required to extend the number Offer beyond October 31, 1997. Subject to the terms and conditions of the Offer and this Agreement, Parent shall accept for payment, and pay for, all Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger withdrawn pursuant to Section 2.10 (assuming the exercise of Offer that Parent becomes obligated to accept for payment and pay for pursuant to the Top-Up Option in full)Offer, then, upon as promptly as practicable after the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(dc) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall include contain as an exhibit or incorporate by reference the offer Offer to purchase, form Purchase (or portions thereof) and forms of the related letter of transmittal and form of notice of guaranteed delivery summary advertisement. Parent and Merger Sub agree that the Schedule 14D-1, the Offer to Purchase and all other ancillary Offer documents amendments or supplements thereto (collectively, which together with any amendments and supplements thereto, constitute the “"Offer Documents”). The Offer Documents will ") shall comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable provisions of the Exchange ActLaws (as defined in Section 5.1(i)). Parent and Merger Sub further agree that the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall cause not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders make the statements therein, in light of Shares as required by applicable federal securities Lawsthe circumstances under which they were made, not misleading. Parent and SubEach of Parent, on the one hand, Merger Sub and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. respect, and Parent and Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares the Company's stockholders, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed prior to the filing thereof with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree agrees to provide the Company and its counsel in writing with any comments Parent or communications, whether written or oral, that Parent, Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
Sources: Merger Agreement (Intel Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(ai) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events or circumstances set forth in clauses paragraphs (v)(aa) or through (v)(bf) of Annex A hereto shall have occurred and be continuing existing (and shall not have been waived by Parent) and (ii) the Company shall have complied with its obligations under Section 1.2 hereof, Parent or Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the Execution Date, but in their sole discretion), and no event later than 10 business days after the Execution Date.
(b) The obligation of Sub Parent to accept for paymentexchange, purchase and pay for to exchange the Offer Consideration for, Public Shares tendered pursuant to the Offer shall be subject only (i) to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer (other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not withdrawn that number of Public Shares which represents more than 50% of the Public Shares then outstanding, subject to Section 1.1(g) hereof the "Minimum Condition"), and (ii) to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)Parent) of the other conditions set forth in such Annex A. Sub A hereto. Parent expressly reserves the right to waive any of such conditions (other than the Minimum Condition and the condition set forth in clause (vi) of the second paragraph of Annex A hereto), to increase the consideration per Public Share payable in the Offer or change and to make any other changes in the terms of the Offer except thatOffer; provided, however, that no change may be made without the prior written consent of the Company, Sub may not waive Company which decreases the condition in clause (i) of Annex A (Exchange Ratio for the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change Offer from that set forth in the Offer may be made which second "Whereas" clause hereof (i) or decreases the Offer Price payable in number of shares of Parent Common Stock issuable pursuant to the OfferCSRs), (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares sought to be purchased acquired in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to the Offer in addition to those the conditions set forth in Annex A hereto, waives the Minimum Condition or the condition set forth in clause (vi) of the second paragraph of Annex A hereto, or modifies or amends any of the conditions set forth in Annex A hereto or which otherwise modifies makes other changes in the conditions set forth in such Annex A or (v) amends any other term terms of the Offer that are in a any manner adverse to the holders of Shares. Subject to Public Shares or, except as provided below, extends the terms and conditions expiration date of the Offer and this AgreementOffer. Notwithstanding the foregoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer may (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (iA) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the initial scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A conditions to Parent's obligation to accept for exchange, and to exchange the Offer Consideration for, Public Shares tendered shall have occurred and not be continuingsatisfied or, until such time as such event or events shall no longer existto the extent permitted by this Agreement, waived, subject, however, to the parties' respective rights to terminate this Agreement pursuant to Section 7.1, and (iiB) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an Each extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this clause (A) of the preceding sentence for up shall not exceed the lesser of ten business days (or such longer period as the Company and Parent may agree in writing in any particular instance) or such fewer number of days that Parent reasonably believes are necessary to thirty (30) days cause the conditions of the Offer set forth in Annex A hereto to be satisfied. In addition, if, at the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If expiration date of the Offer, all of the conditions to the Offer are have been satisfied or waived(or, to the extent permitted by this Agreement, waived by Parent) but the number of Public Shares validly tendered and not withdrawnwithdrawn pursuant to the Offer, when taken together with the Shares, if any, held then beneficially owned by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute constitutes less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise 90% of the Top-Up Option in full)Shares then outstanding, then, upon without the applicable expiration time consent of the OfferCompany, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to(subject to applicable law) have the right to provide for a "subsequent offering period period" (a “Subsequent Offering Period”) in accordance with as contemplated by Rule 14d-11 under the Exchange Act and, if applicable Act) for up to 20 business days after Parent's acceptance for exchange of the Public Shares then tendered and not withdrawn pursuant to the extent permitted under such Rule 14d-11Offer, thereafter extend in which event Parent shall (I) give the required notice of such subsequent offering periodperiod and (II) immediately accept for exchange, and promptly exchange the Offer Consideration for, all Public Shares tendered and not withdrawn as of such expiration date.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Parent shall accept for exchange, and exchange the Offer Consideration (subject to any required withholding of taxes) for, all Public Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable law.
(d) Notwithstanding anything to the contrary set forth herein, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) will be entitled to receive an amount in cash (without interest) equal to such holder's proportionate interest in the net proceeds from the sale or sales in the open market by the Exchange Agent (as hereinafter defined), on behalf of such holders, of the aggregated fractional shares of Parent Common Stock issued pursuant to this paragraph. Promptly following the Purchase Date, (i) the Exchange Agent shall determine the total amount of the fractional shares of Parent Common Stock to which all such tendering stockholders would otherwise be entitled, and aggregate the same into whole shares of Parent Common Stock (rounded up to the nearest whole share), (ii) Parent shall issue such whole shares of Parent Common Stock to the Exchange Agent, as agent for such tendering stockholders, and (iii) the Exchange Agent shall sell such shares of Parent Common Stock at the then prevailing prices on the New York Stock Exchange through one or more member firms of the New York Stock Exchange (which sales shall be executed in round lots to the extent practicable). Until the net proceeds of such sales have been distributed to such tendering stockholders, the Exchange Agent will hold such proceeds in trust for such holders. Promptly after the determination of the amount of cash to be paid to such holders in lieu of any fractional interests in Parent Common Stock, the Exchange Agent shall pay such amounts to such holders (subject to any required withholding of taxes).
(e) The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered to Parent pursuant to the Offer.
(f) As soon promptly as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the "Schedule TO") and (ii) a registration statement on Form S-4 to register, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), the offer and sale of Parent Common Stock pursuant to the Offer and the Merger (together with all amendments, supplements and exhibits thereto, the "Registration Statement"). The Registration Statement shall include a prospectus (the "Prospectus") containing the information required under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include or contain as an exhibit an offer to purchase, exchange and form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectivelycollectively with the Prospectus, and together with any amendments all amendments, supplements and supplements theretoexhibits thereto and to the Prospectus, the “"Offer Documents”Documents "). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to the holders of the Public Shares as and to the extent required by applicable federal securities Lawslaws. Parent and SubParent, on the one hand, and the Company, on the other hand, agree to shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to respect, and Parent shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares the Public Shares, in each case, as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are filed with the SEC or and disseminated to holders of Public Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree agrees to provide the Company and its counsel with any comments or communicationscomments, whether written or oral, that Parent, Sub Parent or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The comments, to consult with the Company and its counsel prior to responding to any such comments and to provide the Company with copies of all such responses, whether written or oral. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
(g) If none of the Shares held by the securities holder channeling fund established in connection with Second Amended and Restated Joint Plan of Reorganization of Williams Communications Group, Inc. and CG Austria Inc. are validly te▇▇▇▇▇▇ ▇n accordance with the terms of the Offer and not withdrawn at the expiration of the Offer, then the Shares in such fund shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by deemed not outstanding for purposes of the Company and its counselMinimum Condition.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub shall to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the Exchange Act) issued and outstanding shares of common stock, par value $0.005 per share, of the Offer as promptly as practicable after Company (the date hereof (but "Shares" or "Common Stock"), at a price of not later less than $10.50 per Share, net to the fifth (5th) Business Day from and including the date of initial public announcement seller in cash. For purposes of this Agreement). Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Sub Offeror to commence accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer there shall be subject only to the satisfaction (or waiver by Parent or Sub validly tendered in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change accordance with the terms of the Offer except that, without prior to the prior written consent expiration date of the CompanyOffer and not withdrawn a number of Shares which, Sub may together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the condition Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in clause the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, Offeror will not (i) of Annex A (decrease the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces decrease the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iviii) imposes impose conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I hereto, (iv) change the conditions set forth to the Offer in such Annex A or any material respect adverse to the Company, (v) amends except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Subject to Notwithstanding the terms and conditions of the Offer and this Agreementforegoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Offeror may, without the consent of the Company, (i) extend the Offer on one or more occasions beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for any a period not exceeding ten (10) Business Days for any extensionto extend beyond July 31, 1998, if on at any then-scheduled expiration date of the Offer Offer, any of the events set forth conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Annex A Section 4.2(d)) shall have occurred and not be continuingsatisfied or waived, until such time as such event conditions are satisfied or events shall no longer exist, waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at The limitations regarding the Initial Expiration Time or subsequent expiration time related to an extension terms and conditions of the Offer, including an extension as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this sentence, any Agreement. Subject to the terms and conditions of the conditions Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the obligation of Sub Offer that Offeror becomes obligated to accept for payment, purchase and pay for Shares tendered for, pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable soon as practicable after expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance subject to compliance with Rule 14d-11 14e-1(c) under the Exchange Act and, if applicable and Act. Subject to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on terms and conditions of the date the Offer is commencedOffer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
Sources: Merger Agreement (Bertuccis Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex ANNEX A hereto shall have occurred and or be continuing (and not waived by Parent or existing, Merger Sub shall commence the Offer as promptly as reasonably practicable after the date hereof, but in their sole discretion), and no event later than five business days after the initial public announcement of Merger Sub's intention to commence the Offer. The obligation of Merger Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall only be subject only to (i) the condition (the "MINIMUM CONDITION") that at least the number of Shares that when added to the Shares already owned by Parent shall constitute a majority of the then outstanding Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex ANNEX A. Merger Sub expressly reserves the right to waive any conditions such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or change and to make any other changes in the terms and conditions of the Offer except thatOffer; PROVIDED, without HOWEVER, that unless Parent and Merger Sub shall have obtained the prior written consent approval of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change may be made in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.of
Appears in 1 contract
Sources: Agreement and Plan of Merger (Silicon Graphics Inc /Ca/)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (but in accordance with Section 8.1no event later than five business days after the public announcement of the execution hereof), Sub shall commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer (the "Offer") to purchase for cash not less than 35,144,833 shares and up to all of the Exchange Act) issued and outstanding common stock, par value $.01 per share (referred to herein as either the Offer as promptly as practicable after "Shares" or "Company Common Stock"), of the date hereof (but not later than the fifth (5th) Business Day from and including the date Company at a price of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only $27.50 per Share, net to the condition that none of the events set forth seller in clauses cash (v)(a) such price, or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub higher price per Share as may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces being referred to herein as the maximum "Offer Price"), the exact number of Shares within such range to be determined by Parent in its sole discretion, it being hereby agreed that Parent may change the amount of Shares sought to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions within such range at any time prior to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term consummation of the Offer in a manner adverse to Offer, provided that Parent complies with the holders requirements of Shares. Subject to the terms and conditions Rule 14e-1 of the Exchange Act. The Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares be subject to there being validly tendered and not withdrawn pursuant prior to the Offer expiration of the Offer, at least 35,144,833 Shares or such other number of Shares as soon shall equal 50.1% of the Shares outstanding on a fully-diluted basis as practicable after of the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i"Minimum Condition") and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events other conditions set forth in Annex A shall have occurred hereto. Sub shall, on the terms and be continuing, until such time as such event subject to the prior satisfaction or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position waiver of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension conditions of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to as soon as practicable after the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all satisfaction of the conditions to the Offer are satisfied or waived, but and the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer; provided, Sub may (and if the Company so requests Sub shallhowever, and Parent that no such payment shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form be made until after any calculation of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares proration as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.applicable
Appears in 1 contract
Sources: Merger Agreement (Rite Aid Corp)
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Section 8.1its terms and provided that none of the events set forth in clause (iii)(a) of Annex A shall have occurred and subject to there being no order, Sub 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 (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable reasonably practicable, but no later than seven (7) business days (commencing with the first business day after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement), after the date hereof. Following such launch, each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase and pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction (or waiver pursuant to the terms hereof of (x) the condition (the “Minimum Condition”) that at least that number of Company Shares validly tendered and not withdrawn prior to the expiration date of the Offer, when added to any Company Shares already owned by Parent or Sub in their sole discretion any of its controlled Subsidiaries, if any, equal to fifty point one percent (but subject to the next sentence)50.1%) of the sum of the then outstanding Company Shares plus (without duplication) a number equal to the number of Company Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights with an exercise price below the Per Share Amount, including the Company RSUs and Company Stock Options, in each case, which are convertible or exercisable on or prior to the later of (i) September 30, 2010 and (ii) the Outside Date, as the same may be extended pursuant to the terms hereof and (y) the other conditions set forth in such Annex A. Sub A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any conditions such condition (other than the Minimum Condition which may not be amended or waived), to increase the Offer or change price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer except thatOffer; provided, that without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and Company no change in the Offer may be made which (i) that decreases the Offer Price Per Share Amount (except as provided in Section 2.1(i)), changes the form of consideration payable in the Offer, (ii) changes adds to the form of consideration conditions to be paid in the Offer, (iii) reduces extends the maximum Offer other than as set forth in this Section 2.1, decreases the number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of Section 2.1(d), or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions modifies or amends any condition to the Offer in addition to those set forth in Annex A hereto any manner that broadens such conditions or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner is adverse to the holders of Company Shares. .
(c) Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreementthereof, the Offer shall expire on remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer is commenced (determined pursuant to in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”). Sub may, without unless the consent 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 CompanySEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 9.1, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A Purchaser shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer. If, at and (ii) if, on the Initial initial Expiration Time Date or any subsequent expiration time related date as of which the Offer is scheduled to an extension of the Offer, including an extension pursuant to this sentenceexpire, any of the conditions to the obligation of Sub to accept for payment, purchase Tender Offer Condition is not satisfied and pay for Shares tendered pursuant to the Offer has not been satisfied waived, then Purchaser shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or waived in accordance with such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this AgreementSection 2.1(d), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension (A) if any of the conditions events set forth in clause (v)(b) or (v)(ciii)(a) of Annex A shall have not then been 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 waived 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) 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 20 business days (determined in accordance with this Agreement (other than any such conditions that are not so satisfied or waived Rule 14d-1(g)(3) under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregateExchange Act). Nothing Notwithstanding the foregoing, no extension provided for in this Section 2.1(b2.1(e) shall affect or impair 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 Purchaser to) accept for payment, and pay for, all shares of Company Common Stock validly tendered during such subsequent offering period, as promptly as practicable after any termination rights under ARTICLE VIIIsuch 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.
(cf) If all 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 conditions Offer. Subject to the Offer are satisfied terms and conditions of this Agreement, Purchaser or waived, but the number of Parent on Purchaser’s behalf shall accept for payment and pay for all Company Shares validly tendered and not withdrawnwithdrawn promptly following the expiration of the Offer (the time and date of the acceptance for payment, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent CompanyAcceptance Date”), constitute less . If payment of the Per Share Amount is to be made to a person other than the number of person in whose name the surrendered certificate formerly evidencing Company Shares required to consummate is registered on the Merger pursuant to Section 2.10 (assuming the exercise stock transfer books of the Top-Up Option Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in full)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, then, upon or shall have established to the applicable expiration time satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(h) As promptly as reasonably practicable on the date of commencement of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub 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, which . The Schedule TO shall include the contain or shall incorporate by reference an offer to purchase, purchase (the “Offer to Purchase”) and form of the related letter of transmittal and form of notice of guaranteed delivery and all any other ancillary documents pursuant to which the Offer documents will be made (collectivelythe Schedule TO, the Offer to Purchase and such other documents, together with any all exhibits, supplements and amendments and supplements thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to holders of Company Shares as in all material respects to the extent required by applicable federal securities Lawslaws. Parent and SubPurchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Parent, on the one hand, Purchaser and the Company, on the other hand, Company agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if it that shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub respect, and Parent and Purchaser further agrees agree to take all steps necessary use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Company Shares, in each case in all material respects as required by applicable federal securities Lawslaws. 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 counsel shall be given a reasonable opportunity to review and comment on the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Purchaser shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub Purchaser agree to (i) provide the Company and its counsel in writing with any written comments or communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments, (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or communications. The 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 shall be given a reasonable opportunity to review and comment on any responses written or oral response to such comments or communicationsany proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(i) If, between the date of this Agreement and Parent and Sub 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 give due consideration be adjusted to all reasonable additions, deletions or changes suggested thereto by the Company and its counselextent appropriate.
Appears in 1 contract
Sources: Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) a failure to satisfy any of the Exchange Act) the Offer conditions set forth in Annex I hereto, Merger Sub- sidiary shall, as promptly as practicable after the date hereof (hereof, but not in no event later than five business days following the fifth (5th) Business Day from and including the date of initial public announcement of the terms of this Agreement, com- mence an offer (the "Offer") to purchase all of the outstanding shares of common stock, par value $.01 per share (the "Shares"), including the associated Rights (defined below in Section 4.1(c)) of the Company at a price of $30.50 per Share (including such associated Rights), net to the seller in cash. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer there shall be subject only to the satisfaction (or waiver by Parent or Sub validly tendered in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change accordance with the terms of the Offer except prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. Parent and Merger Subsidiary expressly reserve the right to waive the conditions to the Offer; pro- vided that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition addi- tion to those set forth in Annex A hereto I, changes or which otherwise modifies waives the conditions Mini- mum Condition, extends the Offer (except as set forth in such Annex A the following sentence), or (v) amends makes any other term of change to any condition to the Offer set forth in a manner Annex I which is adverse to the holders hold- ers of Shares. Subject to the terms and conditions of the Offer in this Agre- ement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Sub shall, and Parent Merger Sub- sidiary shall cause Sub to, accept for payment, purchase and pay 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 (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all such Shares promptly after acceptance; provided that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) Merger Subsidiary may extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionif, if on any then-at the scheduled expiration date of the Offer or any extension thereof any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied, until such time as such event conditions are satisfied or events shall no longer existwaived, and (ii) Merger Subsidiary may extend the Offer for any a further period required by any rule, regulation, interpretation or position of time of not more than 20 business days to meet the SEC or the staff thereof applicable objective (which is not a condition to the Offer. If) that there be validly tendered, at in accordance with the Initial Expiration Time or subsequent expiration time related to an extension terms of the Offer, including an extension pursuant prior to this sentence, any the expiration date of the conditions Offer (as so extended) and not with- drawn a number of Shares, which together with Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Fully Diluted Shares. Subject to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), thenSection 9.1, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions condition set forth in clause (v)(b) or (v)(cii) of the first paragraph of Annex A I is not satisfied as of the date the Offer would otherwise have not then been satisfied or waived in accordance with this Agreement expired, Merger Subsidiary shall extend the Offer until the earlier of (other than any such conditions i) the date that are not so satisfied or waived under circumstances in which is 30 days after the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by first sched- uled expiration date and (ii) the Company through date the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions condition set forth in clause (v)(b) or (v)(cii) of the first paragraph of Annex A are I is satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(db) As soon as practicable on the date of commence- ment of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC (defined below in Section 4.1(a)) a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, Offer which shall include will contain the offer to purchase, purchase and form of the related letter let- ter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent ") and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities LawsShares. Parent and SubPar- ent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Sub- sidiary 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 Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are Schedule 14D-1 prior to its being filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement As promptly as practicable (and in any event within five (5) Business Days) after the date hereof, the Purchaser shall not have been terminated in accordance with Section 8.1commence, Sub shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to purchase all the outstanding Shares at the Offer Price. The consummation of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Offer, and the obligation of Sub the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the satisfaction Expiration Date (or waiver A) that number of Shares which, together with the Contributed Shares and any other Shares then subject to the Contribution Agreement and the number of Shares (if any) then owned of record by Parent or Sub in their any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole discretion voting power, represents at least a majority of the Shares then outstanding (but determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger, and (B) that number of Shares which represents at least a majority of the Shares then issued and outstanding, excluding from such calculation (x) the Contributed Shares and any other Shares then subject to the next sentence)Contribution Agreement, (y) other Shares then owned of record or beneficially by any executive officer (within the meaning of Section 16 under the Exchange Act) of the conditions set forth in such Annex A. Sub expressly reserves Company (provided, that any Shares that may be deemed to be beneficially owned by the right to waive any conditions stockholder party to the Offer Contribution Agreement pursuant to that certain Voting Agreement dated September 30, 2005, by and between the Investor and the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Revocable Trust u/a/d December 18, 2006, as amended or change extended from time to time, shall not be deemed to be beneficially owned by such stockholder for purposes of this calculation), and (z) any Shares then beneficially owned by Parent or any of its direct or indirect Subsidiaries, including the terms of the Offer except thatPurchaser (collectively, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause ); and (ii) the satisfaction, or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated waiver by the Minimum ConditionPurchaser, (iv) imposes of the other conditions to the Offer in addition to those and requirements set forth in Annex A hereto or which otherwise modifies I. The conditions and requirements to the conditions Offer set forth in such Annex A or (v) amends any other term I are for the sole benefit of the Offer Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition and, other than the Minimum Condition and the Governmental Approval Condition, may be waived by the Purchaser, in a manner adverse its sole discretion, in whole or in part at any time and from time to the holders of Shares. time, subject to this Section 1.1.
(b) Subject to the terms and conditions satisfaction of the Offer Minimum Condition and this Agreement, Sub shallthe Governmental Approval Condition, and Parent the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall cause Sub to, accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable promptly after the expiration Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer (shall be promptly paid to the date of acceptance for paymentseller in cash, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or Law.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with Sections 3.2(ithis Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing (by action of the Company Board upon the recommendation of the Special Committee), the Purchaser shall not (i) and decrease the Offer Price, (j). Parent shall provide or cause ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be provided to Sub on a timely basis funds sufficient to purchase and pay for purchased in the Offer, (iv) amend or waive the Minimum Condition or the Governmental Approval Condition, (v) amend any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant of the other conditions or requirements to the Offer.Offer set forth in Annex I in a manner adverse to the holders of Shares or (vi) add any additional conditions or requirements (other than procedural and other customary requirements for tendering Shares) to the Offer that are not expressly set forth in Annex I.
(bd) Unless extended as provided in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m. (New York City time) on the date (the “Initial Expiration Time”) that is twenty the later of: (20i) twenty-one (21) Business Days after following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend three (3) Business Days following the Offer for any period required by any ruleSolicitation Period End Date (such date and time, regulationthe “Initial Expiration Date”) or, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at if the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer Date has not been satisfied (or waived extended in accordance with this Agreement), then, if requested by the Company, Sub shall, such later date and Parent shall cause Sub to, extend time to which the Offer through has been so extended (the Initial Expiration Date, or such later date and time as to which the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then Initial Expiration Date has been satisfied or waived extended in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which Agreement, the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate“Expiration Date”). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(ce) If on or prior to the second (2nd) Business Day following the Solicitation Period End Date, the Company has delivered a notice of Exempted Person in accordance with Section 5.4(b), the Purchaser shall extend the Offer for successive periods of at least three (3) Business Days each until 5:00 p.m. (New York City time) on the Business Day immediately following the Cut-Off Date, provided, however, that the Purchaser shall not be required to extend the Offer if on or prior to the then scheduled Expiration Date all Competing Proposals by Exempted Persons have expired by their terms or been withdrawn or terminated. If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer are satisfied (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied, or waivedif permitted by Section 1.1(c), but waived by the number Purchaser, the Purchaser shall extend the Offer for successive periods of Shares validly tendered up to ten (10) Business Days each, the length of each such period to be determined by the Purchaser in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not, and shall not withdrawnbe required to, together with extend the SharesOffer (i) beyond November 15, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent 2011 (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a the “Parent CompanyInitial Outside Date”), constitute less or (ii) if, on the Initial Outside Date, all of the conditions to the Offer have been satisfied, or waived by the Purchaser, other than the number Minimum Condition and either or both of Shares the Governmental Approval Condition or the condition to the Offer set forth in clause (c)(ii)(z) of Annex I, beyond December 31, 2011 (the “Extended Outside Date”); provided, further, that the Purchaser shall not be required to consummate extend the Merger pursuant Offer (but may elect to do so in its sole discretion) beyond the Business Day immediately following the Cut-Off Date, if the Company has delivered a notice of Exempted Person in accordance with Section 2.10 5.4(b), unless the Company Board has rejected the Competing Proposal giving rise to such notice and reconfirmed the Company Board Recommendation, which rejection of such Competing Proposal and reconfirmation of the Company Board Recommendation has been publicly announced by the Company. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (assuming the “SEC”) or its staff.
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to the exercise of the Top-Up Option in fullOption), thenthe Purchaser may, upon the applicable expiration time of the Offerin its sole discretion, Sub may provide for a “subsequent offering period” (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and Act. Subject to the extent permitted under terms and conditions of this Agreement and the Offer, the Purchaser shall immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such Rule 14d-11, thereafter extend such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f) and Rule 14d-11 under the Exchange Act.
(dg) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall promptly (and in any event within seventy-two (72) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall not accept any Shares pursuant to the Offer and shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Sub the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include include, as exhibits, the offer Offer to purchasePurchase, a form of the related letter of transmittal and a form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments amendments, supplements and supplements exhibits thereto, the “Offer Documents”). The Offer Documents will comply Purchaser may, but shall not be required to, provide guaranteed delivery procedures for the tender of Shares in all material respects with the applicable provisions of the Exchange ActOffer. Parent and Sub shall The Purchaser agrees to cause the Offer Documents to be disseminated to holders of Shares Shares, as and to the extent required by applicable federal securities Lawsthe Exchange Act. Parent and Sub, on the one hand, and the Company, on the other hand, agree The Purchaser agrees to promptly correct any information provided included or incorporated by it for use reference in the Offer Documents Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further , and the Purchaser agrees to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawsthe Exchange Act. The Company agrees to notify the Purchaser in writing if and to the extent that the Company becomes aware that any information provided to the Purchaser by the Company expressly for use in the Offer Documents becomes false or misleading in any material respect. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub the Purchaser shall give due consideration to all reasonable the additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any comments or communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all reasonable the additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.1Annex I, Sub as promptly as practicable after the date hereof, Merger Subsidiary shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act1▇▇▇ ▇▇▇) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation of Sub to commence the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses Offer, prior to the scheduled expiration of the Offer (v)(aas it may be extended hereunder) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent or Sub in their sole discretion)Merger Subsidiary, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except thatOffer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer Condition may not be made which (i) decreases the Offer Price payable in the Offerwaived, (ii) no change may be made that changes the form of consideration to be paid in pursuant to the Offer, (iii) reduces decreases the maximum Offer Price or the number of Company Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I, and (iii) the conditions Offer may not be extended except as set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Sharesthis Section 2.01(a). Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) 20 Business Days after the commencement of the Offer (determined pursuant to Rule for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act)1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Sub may, without Merger Subsidiary shall extend the consent of the Company, Offer (i) extend if, at the Offer on one scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as conditions, (y) the reasonable determination by Parent that any such event condition to the Offer is not capable of being satisfied on or events shall no longer existprior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (z) the End Date, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Merger Subsidiary may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request provide one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act and, if applicable and 1934 Act. Subject to the extent permitted under such foregoing, including the requirements of Rule 14d-11, thereafter extend such subsequent offering periodand upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and pay for, as promptly as practicable after the final expiration of the Offer, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include the offer summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase, form Purchase and forms of the related letter of transmittal and form summary advertisement, if any, in respect of notice of guaranteed delivery and all other ancillary the Offer documents (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent , and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable federal securities Laws. laws or reasonably requested by Parent and SubMerger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Company Shares, in each case as and to the extent required by applicable U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Merger Subsidiary shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or other communications. The Company , and its counsel shall be given (B) a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
(c) Parent and Merger Subsidiary shall timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to all reasonable additions, deletions or changes suggested thereto the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Company Shares via the Offer Documents the information set forth in any such registration statement to the extent and within the time period required by Chapter 80B of the Company and its counselMinnesota Statutes.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 and none of the events set forth in paragraphs (a), Sub (b), (c) or (d) of Annex I shall have occurred and be continuing and shall be likely to be continuing as of the End Date (as defined in Section 8.1(b)(iii)), as promptly as practicable after the date of this Agreement (and in any event not later than the date on which the Company files a Schedule 13E-3 with the SEC (as defined in Section 1.1(f)) pursuant to Regulation M-A under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)), the Buyer shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable after to purchase for cash all outstanding shares of Common Stock that are not already owned by Danisco and its subsidiaries, at the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation of Sub to commence the Offer shall be subject only to (i) the condition that none there shall be validly tendered in the Offer and not withdrawn prior to the expiration of the events set forth Offer that number of shares of Common Stock which, together with the 25,000,000 shares of Common Stock beneficially owned by Danisco and its subsidiaries as of the date hereof, and the 25,000,000 shares of Common Stock beneficially owned by
(A) all shares of Common Stock held by Danisco and its affiliates, (B) all shares of Common Stock held by E▇▇▇▇▇▇ and its affiliates, and (C) all shares of Common Stock held by each Person who is an officer or director of the Company or any Company Subsidiary (as defined in clauses (v)(aSection 3.2) or who is an affiliate of any such officer or director (v)(b) the “Majority of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretionthe Minority Condition”), and (iii) the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves I.
(b) The Offer shall be made by means of an offer to purchase (the right “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition, the Majority of the Minority Condition and the other conditions set forth in Annex I.
(c) The Buyer shall not decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of shares of Common Stock sought in the Offer, waive any the Majority of the Minority Condition, impose additional conditions to the Offer or (except as expressly permitted in this Section 1.1) extend or otherwise change the terms expiration date of the Offer except thatOffer, and shall not amend or supplement any condition to or provision of the Offer, in each case without the prior written consent of the Company; provided, Sub may not waive however, that (w) the condition in clause (i) covenants of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, E▇▇▇▇▇▇ and no change Danisco in the Offer may Stock Purchase Agreement to sell and to purchase, respectively, shares of capital stock of the Company shall not be made which deemed to require consent of the Company hereunder, (ix) decreases if on any scheduled expiration date of the Offer Price payable (as such date may have been extended in the Offeraccordance with this Agreement), (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes all conditions to the Offer shall not have been satisfied or waived, the Buyer may (by written notice delivered to the Company), from time to time, in addition its sole discretion, extend the expiration date of the Offer for successive periods of up to those 10 business days up to (but not beyond) the End Date, (y) if on any scheduled expiration date of the Offer (as such date may have been extended in accordance with this Agreement) all conditions to the Offer shall not have been satisfied or waived the Company may (by written notice delivered to the Buyer), from time to time in its sole discretion, require the Buyer to extend the expiration date of the Offer for successive periods of up to 10 business days up to (but not beyond) the End Date, and, if the Company so requires the Buyer to extend the expiration date of the Offer, the Buyer shall extend the expiration date of the Offer for the requested period, and (z) the Buyer may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act.
(d) The Buyer may increase the Offer Price and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s consent. The Buyer shall not terminate the Offer prior to any scheduled expiration date (as such date may be extended or required to be extended) without the written consent of the Company except in the event that Danisco validly terminates this Agreement pursuant to Section 8.1.
(e) Subject to the prior satisfaction of the Majority of the Minority Condition and the satisfaction or waiver by Danisco or the Buyer of the Minimum Condition and the other conditions to the Offer set forth in Annex A hereto or which otherwise modifies I, the conditions set forth in such Annex A or (v) amends any other term of Buyer shall consummate the Offer in a manner adverse to the holders of Shares. Subject to the accordance with its terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase payment and pay for all Shares validly shares of Common Stock tendered and not withdrawn pursuant to the Offer as soon as practicable after the Buyer is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance first date upon which the Buyer may accept for payment on shares of Common Stock tendered pursuant to the Acceptance Date, the “Acceptance Time”Offer) or shall be 20 business days (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or calculated in accordance with Sections 3.2(iRule 14d-1(g) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to under the Exchange Act) following the commencement of the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(df) As soon as practicable on the date the Offer is commenced, Parent (i) Danisco and Sub the Buyer shall file with the SEC Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”), and a Schedule 13E-3 (together with all amendments, supplements and exhibits thereto, the “Buyer Schedule 13E-3”). The Schedule TO shall include the offer summary term sheet required under Regulation M-A and, as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and summary advertisement (the Schedule TO, Buyer Schedule 13E-3, Offer to Purchase and form of notice letter of guaranteed delivery transmittal and all other ancillary Offer documents (collectivelysummary advertisement referred to above, together with any amendments and supplements thereto, being referred to collectively in this Agreement as the “Offer Documents”). The Offer Documents will comply in Danisco and the Buyer agree to take all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares Common Stock, in each case as and to the extent required by applicable federal securities Lawslaws and regulations. Parent Each of Danisco and Subthe Buyer, 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 and to the extent required by applicable Lawlaw. Sub Danisco and the Buyer further agrees agree to take all steps necessary to cause the Offer Documents Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to holders of Shares Common Stock, in each case as and to the extent required by applicable federal securities Lawslaws and regulations. The Company and its counsel (and the Special Committee and its counsel) shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of SharesSEC, and Parent Danisco and Sub the Buyer shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel (or the Special Committee and its counsel). In addition, Parent Danisco and Sub the Buyer agree to provide the Company and its counsel (and the Special Committee and its counsel) in writing with any comments or communicationscomments, whether written or oral, that ParentDanisco, Sub the Buyer or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after ParentDanisco’s or Subthe Buyer’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel (and the Special Committee and its counsel) shall be given a reasonable advance opportunity to review any such written responses to such comments or communications, and Parent Danisco and Sub the Buyer shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel (and the Special Committee and its counsel).
(g) If the Offer is terminated by the Buyer, or this Agreement is terminated prior to the purchase of shares of Common Stock in the Offer, Danisco and the Buyer shall promptly return, and shall cause any depository or paying agent acting on behalf of Danisco or the Buyer, to return promptly all tendered shares of Common Stock to the registered holders thereof.
(h) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the date hereof and prior to the Buyer’s acceptance for payment of, and payment for, shares pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with Section 8.19.01 hereof and none of the ------------ events set forth in clause (a) through (i) of Annex A hereto shall have occurred ------- or be continuing, Sub Purchaser shall commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the ------------ Offer as promptly as reasonably practicable after the date hereof (hereof, but not in no event later than 10 business days after the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Purchaser's intention to commence the Offer. The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to the condition (the "Minimum Condition") that at least the number of Shares that ----------------- shall constitute fifty-one percent (51%) of the then outstanding Shares on a Fully Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of each of the other conditions set forth in such Annex A. Sub A hereto. Purchaser expressly ------- reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that without the Company's prior written -------- ------- consent, Purchaser shall not waive the Minimum Condition and no change may be made (iii) changes which decreases the form of consideration to be paid price per Share payable in the Offer, or (iiiii) which reduces the maximum number of Shares to be purchased in the Offer Offer, or (iii) which changes the minimum number form of Shares contemplated by consideration payable in the Minimum ConditionOffer, or (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A ------- hereto, or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreementwhich, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer except as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required provided by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for paymentthe following sentence, purchase and pay for pursuant to extends the Offer.
(b) Unless extended as provided in this Agreement. Notwithstanding the foregoing, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the scheduled expiration date date, which shall be 20 business days following the commencement of the Offer Offer, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A conditions to Purchaser's obligation to accept Shares for payment, shall have occurred and not be continuingsatisfied or waived, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC"), or the --- staff thereof thereof, applicable to the Offer, or (iii) extend (or re-extend) the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company's stockholders in accordance with Delaware Law . IfIn addition, at if, on the Initial Expiration Time or subsequent then applicable expiration time related to an extension date of the Offer, including an extension pursuant to this sentence, any the sole condition remaining unsatisfied is the failure of the conditions waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act") ------- or under any applicable material non-United States statutes or regulations to the obligation of Sub to accept for paymenthave expired or been terminated, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent then Purchaser shall cause Sub to, extend the Offer through such from time as to time until the Company may specifyearlier to occur of (i) February 15, which time shall be no later than 2001 and (ii) the Termination Date; provided that fifth business day after the Company shall not be entitled to so request such an extension if any expiration or termination of the conditions set forth applicable waiting period under the HSR Act or any applicable material non-United States statutes or regulation. Parent and Purchaser further agree that in clause (v)(b) or (v)(c) the event of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise failure of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are to be either satisfied or waived on any date on which the Offer would have otherwise expired, Purchaser shall, if such condition or conditions could reasonably be satisfied by February 15, 2001 and for so long as such condition or conditions continue to reasonably be expected to be satisfied by February 15, 2001, extend the Offer until such condition or conditions shall have been satisfied or waived; provided, but however, that Purchaser shall not be required to extend the number Offer -------- ------- pursuant to this sentence beyond February 15, 2001. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall pay for all Shares validly tendered and not withdrawn, together with withdrawn promptly following the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number acceptance of Shares required to consummate the Merger for payment pursuant to Section 2.10 (assuming the exercise Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the Top-Up Option in full), then, upon SEC and the applicable expiration time terms and conditions of the Offer, Sub may (and if Purchaser expressly reserves the Company so requests Sub shall, and Parent right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) be effected in accordance compliance with Rule 14d-11 14e-1(c) under the Exchange Act and, if applicable and Act. If the payment equal to the extent permitted under Per Share Amount in cash (the "Merger ------ Consideration") is to be made to a person other than the person in whose name ------------- the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such Rule 14d-11payment 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, thereafter extend or shall have established to the satisfaction of Purchaser that such subsequent offering periodtaxes either have been paid or are not applicable.
(db) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub 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, which . The Schedule TO shall include the contain or shall -- incorporate by reference an offer to purchase, form purchase (the "Offer to Purchase") and ----------------- forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule TO, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubParent, on the one hand, Purchaser and the Company, on the other hand, Company agree to correct --------------- promptly correct any information provided by it any of them for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are filed (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC or disseminated dissemination to holders stockholders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselCompany. In addition, Parent and Sub agree to Purchaser shall provide the Company and its counsel in writing with any comments Parent or communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Schedule TO promptly after Parent’s or Sub’s, as the case may be, receipt of such comments and with copies of any written responses by Parent or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments Purchaser or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its their counsel.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement Agreement, Parent shall not have been terminated in accordance with Section 8.1cause Sub, Sub shall no later than November 8, 2001, to commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer, at a price of $15.25 per share, net to the seller in cash, without interest (or at such higher price as Sub in its sole discretion elects to offer) (the "Offer as promptly as practicable after the date hereof (Price"), but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)subject to any withholding required by law. The obligation of Parent and Sub to commence the Offer accept and pay for Shares tendered shall be subject only to the condition that none there shall be validly tendered prior to the expiration date of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (Offer and not waived withdrawn a number of Shares which, when added to the shares of Company Common Stock owned by Parent Parent, represent at least 90.1% of the Shares issued and outstanding on a fully diluted basis (including for purposes of such calculation all shares of Company Common Stock issuable upon exercise of all Company Options (as defined in Section 2.6) that vest (or Sub in their sole discretion), upon consummation of the Offer will vest) (but excluding shares of Company Common Stock that are issuable upon the exercise of Company Options that are cancelled pursuant to Section 2.6(a) hereof or upon the exercise of Company Warrants that are cancelled pursuant to Section 2.7 hereof) and the obligation exercise of Sub to accept for payment, purchase all outstanding Company Warrants (as defined in Section 2.7)) (the "Minimum Condition") and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. I (collectively, the "Offer Conditions"). Parent and Sub expressly reserves reserve the right to waive any conditions to the Offer or change the terms of the Offer Conditions (except that Parent and Sub may not waive the Minimum Condition except with the consent of the Company or as and to the extent provided in this Agreement), to increase the price per share payable in the Offer and to make any other change or changes in the terms or conditions of the Offer, including without limitation extending the expiration date, except that, without the prior written consent of the Company, Parent and Sub may shall not waive the condition in clause (i) reduce the number of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in Shares subject to the Offer, (ii) changes reduce the Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement) in a manner adverse to the holders of the Company Common Stock, (iv) except as provided in Section 1.1(b), extend the Offer, (v) change the form of consideration to be paid payable in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (vvi) amends amend any other term of the Offer in a manner adverse to the holders of Shares. Company Shareholders.
(b) Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreementhereof, the Offer shall expire at midnight, San Francisco time, on the date twenty business days (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) as defined under the Exchange Act). ) after the date the Offer is commenced, provided, that Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionOffer, if on any then-at the scheduled or extended expiration date of the Offer any of the events set forth in Annex A Offer Conditions shall have occurred and not be continuingsatisfied or waived, until such time as such event conditions are satisfied or events shall no longer existwaived, and subject in each case to any right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent any scheduled expiration time related to an extension date of the Offer, including an extension pursuant to this sentencethe conditions set forth in paragraph 5(g) of Annex I are satisfied, but any of the conditions set forth in paragraphs 2 or 5(a), (b), (c), (d), (e) or (f) of Annex I are not satisfied, then at the request of the Company, Sub shall extend the Offer from time to time, subject to any right of Parent, Sub or the obligation of Sub Company to accept for payment, purchase and pay for Shares tendered terminate this Agreement pursuant to the Offer has terms hereof.
(c) Notwithstanding any other provision contained herein, in the event the Minimum Condition is not been satisfied (or waived in accordance with this Agreement)on any scheduled expiration date of the Offer, then, if requested by at the request of the Company, subject to any right of Parent or Sub to terminate this Agreement pursuant to the terms hereof, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if take any of the conditions actions set forth in clause the following clauses (v)(bx), (y) or (v)(cz) of Annex A (provided that Sub shall have not then been satisfied or waived in accordance with this Agreement complete discretion as to which actions among the three clauses to take) as follows: (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30x) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of extend the Offer pursuant to this sentence for up to thirty Section 1.1(b), (30y) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to amend the Offer are satisfied or waived, but the number in contemplation of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full)Agreement (to the extent the Option Agreement is exercisable at such time) to reduce the Minimum Condition to that number of shares (the "Option Exercise Minimum Number") equal to the number of shares which, thenwhen combined with the number of shares issued upon exercise of the Option Agreement, equals 90.1% of the shares of Company Common Stock on a fully diluted basis (but excluding shares of Company Common Stock that are issuable upon the applicable exercise of Company Options that are cancelled pursuant to Section 2.6(a) hereof or upon the exercise of Company Warrants that are cancelled pursuant to Section 2.7 hereof) or (z) amend the Offer to provide that, in the event (i) the Minimum Condition is not satisfied at the next scheduled expiration time date of the Offer (after giving effect to the issuance of any shares of Company Common Stock theretofore acquired by Parent or Sub) and (ii) the number of shares of Company Common Stock tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding shares of Company Common Stock, Sub shall waive the Minimum Condition and amend the Offer to reduce the number of shares of Company Common Stock subject to the Offer to 49.9% of the shares of Company Common Stock then outstanding (the "Revised Minimum Number") and, subject to the prior satisfaction or waiver of the other conditions of the Offer, purchase, on a pro rata basis, the Revised Minimum Number of shares (it being understood that Sub may (and shall not in any event be required to accept for payment, or pay for, any shares of Company Common Stock if less than the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and Revised Minimum Number of shares are tendered pursuant to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodOffer and not withdrawn at the expiration date).
(d) As Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment shares of Company Common Stock validly tendered as soon as practicable on the date the Offer is commenced, Parent (and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to in any event within five business days) after such satisfaction or waiver of all conditions of the Offer, which shall include the offer to purchaseand pay for accepted shares of Company Common Stock as promptly thereafter as reasonably practicable, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together in any event in compliance with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of Rule 14e-1(c) under the Exchange Act. Parent and Sub shall provide, or cause the Offer Documents to be disseminated provided to holders of Shares as required by applicable federal securities Laws. Parent and Sub, Sub on a timely basis 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 applicable Law. Sub further agrees to take all steps funds necessary to cause the Offer Documents as so corrected pay for any shares of Company Common Stock Sub accepts or becomes obligated to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselaccept for payment.
Appears in 1 contract
Sources: Merger Agreement (Odwalla Inc)
The Offer. (a) Provided that As promptly as reasonably practicable (and in any event within 15 Business Days after the date of this Agreement Agreement, 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 or Parent is delayed), the Purchaser shall not have been terminated in accordance with Section 8.1commence, Sub shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) , the Offer as promptly as practicable after to purchase all of the date hereof (but not later than outstanding Shares for cash at the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation of Sub to commence the Offer shall be subject only to the condition that none consummation of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Offer, and the obligation of Sub the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the satisfaction Expiration Date that number of Shares which, together with the number of Shares (or waiver if any) then owned by Parent or Sub in their any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole discretion voting power, represents at least a majority of the Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but subject not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the next sentence)extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thatguarantee) (collectively, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause ), and (ii) the satisfaction, or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated waiver by the Minimum Condition, Purchaser (iv) imposes conditions to the Offer extent permitted in addition to those Annex I), of the other conditions and requirements set forth in Annex A hereto or which otherwise modifies I. Subject to this Section 1.1 and Annex I, the conditions and requirements to the Offer set forth in such Annex A or (v) amends any other term I are for the sole benefit of the Offer Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition or may be waived by the Purchaser, in a manner adverse its sole discretion, in whole or in part at any time and from time to the holders of Shares. time.
(b) Subject to the terms and conditions satisfaction of the Offer Minimum Condition and this Agreementthe satisfaction, Sub or waiver by the Purchaser (to the extent permitted by Annex I), of the other conditions and requirements set forth in Annex I, the Purchaser shall, and Parent shall cause Sub the Purchaser to, accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon promptly as practicable (and in any event not more than two Business Days) after the expiration first Expiration Date upon which such conditions are satisfied or waived. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for paymentshall be paid, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or Law. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with Sections 3.2(ithis Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) and decrease the Offer Price, (jii) change the form of consideration payable in the Offer (other than adding consideration). Parent shall provide or cause , (iii) reduce the maximum number of Shares to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to purchased in the Offer.
, (iv) amend or waive the Minimum Condition or the conditions set forth in clause (b) Unless extended of Annex I, (v) add to or amend any of the other conditions and requirements to the Offer set forth in Annex I in a manner that is material and adverse to the holders of Shares, (vi) except as provided in Section 1.1(e), extend the Offer, or (vii) otherwise amend the Offer in any manner that is material and adverse to the holder of Shares. 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 action with respect to its securities that is prohibited by the terms of this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall initially expire at midnight (New York City time) on the date (the “Initial Expiration Time”) that is twenty (20) 20 Business Days after the commencement of the Offer (determined pursuant to calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act). Sub may, without ) following the consent commencement of the CompanyOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended as required by or otherwise in accordance with this Agreement, the date and time to which the Offer has been so extended (ithe 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, 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 occasions, for any period not exceeding ten (10) successive periods of up to 20 Business Days for any extensioneach, if on any then-scheduled expiration date the length of each such period (subject to such 20 Business Day maximum) to be determined by Parent in its sole discretion, in order to permit the Offer any satisfaction of such conditions. In addition, the events set forth in Annex A Purchaser shall have occurred (and be continuing, until such time as such event or events Parent shall no longer exist, and (iicause the Purchaser to) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable its staff. Notwithstanding anything to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived contrary in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent Purchaser shall cause Sub to, not be required to extend the Offer through such time as for any reason beyond October 23, 2015 (the Company may specify, which time shall be no later than the Termination “Outside Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate”). Nothing in this Section 2.1(b1.1(e) shall affect be deemed to impair, limit or impair otherwise restrict in any termination rights under manner the right of Parent or the Company to terminate this Agreement pursuant to ARTICLE VIIIVII hereof.
(cf) If all The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the conditions Company, except if this Agreement is terminated pursuant to ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, the Purchaser shall promptly (and in any event within 48 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the Offer are satisfied or waived, but the number purchase of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shallPurchaser shall promptly return, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) any depositary acting on behalf of the Purchaser to return, in accordance with Rule 14d-11 under the Exchange Act andapplicable Law, if applicable and all tendered Shares to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodregistered holders thereof.
(dg) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Sub the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall include include, as exhibits, the offer Offer to purchasePurchase, a form of the related letter of transmittal and a form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments amendments, supplements and supplements exhibits thereto, the “Offer Documents”). The Offer Documents will comply Purchaser shall provide guaranteed delivery procedures for the tender of Shares in all material respects with the applicable provisions of the Exchange ActOffer. Parent and Sub shall The Purchaser agrees to cause the Offer Documents to be disseminated to holders of Shares Shares, as and to the extent required by the Securities Act and the Exchange Act. The Company shall promptly furnish to Parent and the Purchaser in writing all information concerning the Company and its Subsidiaries and stockholders that may be required by applicable federal securities LawsLaws or reasonably requested by Parent or the Purchaser for inclusion in the Offer Documents. Parent and SubThe Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further , and the Purchaser agrees to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawsthe Securities Act or the Exchange Act. 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 or disseminated to holders of SharesSEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any comments or communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Notwithstanding the foregoing, Parent and the Purchaser’s obligations pursuant to the immediately preceding three sentences shall not apply if the Company Board (or any committee thereof) has made an Adverse Recommendation Change.
Appears in 1 contract
Sources: Merger Agreement (Emulex Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing, Sub as promptly as practicable, and, in any event, within seven business days of the date hereof, the Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer as promptly as practicable after to purchase for cash all Shares at the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation obligations of Sub the Purchaser to commence accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms expiration of the Offer except that, without the prior written consent that number of Shares which represents at least a majority of the Company, Sub may not waive the condition in clause (i) of Annex A Shares outstanding on a fully-diluted basis (the “Minimum Condition”) or the condition in clause and (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes other conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of SharesI hereto. Subject to the terms prior satisfaction of the Minimum Condition and subject to the prior satisfaction or waiver by Parent or the Purchaser of the other conditions of the Offer and this Agreementset forth in Annex I hereto (it being understood that the Minimum Condition cannot be waived or modified without the consent of the Company), Sub the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and Parent shall cause Sub to, accept for payment, purchase payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable promptly after the expiration of the Offer (Offer, which shall initially be the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable 20th business day following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer Offer, provided, however, that (determined pursuant to Rule 14d-1(g)(3w) under if on the Exchange Act). Sub may, without the consent initial expiration date of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-subsequent scheduled expiration date of the Offer (as extended in accordance with this Agreement), all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such period as the Purchaser may determine until such conditions are waived or satisfied; provided, however, that, if, as of any scheduled expiration date of the Offer, (A) any of the events set forth in clauses (a), (b) or (c) of Annex A I shall have occurred and be continuingcontinuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser) then, until subject to the right of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the Offer unless such time as conditions could not reasonably be expected to be waived or satisfied by the Outside Date or (B) any of the events set forth in clause (f) of Annex I (but only with respect to unintentional failures of such event representations and warranties to be true and correct) or events clause (g) of Annex I (but only with respect to non-willful breaches of, or failures to comply with, covenants and agreements) shall no longer existhave occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser), then, subject to the right of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the offer to a date that is not less than 30 days after Purchaser notified the Company of such event, (iix) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. If, at (y) if on the Initial Expiration Time or subsequent then scheduled expiration time related to an extension date of the Offer, including an extension pursuant to this sentence, any Offer there shall have been validly tendered and not withdrawn at least 80% but less than 90% of the conditions to Shares outstanding on a fully diluted basis, the obligation of Sub to accept for paymentPurchaser may, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub toits sole discretion, extend the Offer through such time as for an additional period of not more than 10 business days, and (z) the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Purchaser may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each provide a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act andAct. In addition, if applicable the Purchaser may increase the Offer Price and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s consent; provided, however, that neither Parent nor Purchaser shall otherwise modify the Offer in any manner adverse to the holders of Shares without the Company’s consent, except as specifically permitted under such Rule 14d-11, thereafter extend such subsequent offering periodin this Agreement.
(db) As soon as practicable on the date the Offer is commenced, Parent and Sub the Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form purchase and forms of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub the Purchaser shall cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Lawslaws. Parent and Subthe Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Lawlaw. Sub Parent and the Purchaser further agrees 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 as required by applicable federal securities Lawslaws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub the Purchaser agree to provide the Company and its counsel with any comments or communications, whether written or oral, communications that Parent, Sub the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Subthe Purchaser’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communicationscomments, and Parent and Sub shall give due consideration to all reasonable additions, deletions any written or changes suggested thereto by the Company and its counseloral responses thereto.
Appears in 1 contract
Sources: Merger Agreement (Dmi Furniture Inc)
The Offer. (a) Provided that As promptly as reasonably practicable (and in any event within ten Business Days after the date of this Agreement Agreement, 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 or Parent is delayed), the Purchaser shall not have been terminated in accordance with Section 8.1commence, Sub shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) , the Offer as promptly as practicable after to purchase all of the date hereof (but not later than outstanding Shares for cash at the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer Price. The obligation of Sub to commence the Offer shall be subject only to the condition that none consummation of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)Offer, and the obligation of Sub the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the satisfaction Expiration Date that number of Shares which, together with the number of Shares (or waiver if any) then owned by Parent or Sub in their any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole discretion voting power, represents at least a majority of the Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but subject not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the next sentence)extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thatguarantee) (collectively, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause and (ii) the satisfaction, or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated waiver by the Minimum Condition, Purchaser (iv) imposes conditions to the Offer extent permitted in addition to those Annex I), of the other conditions and requirements set forth in Annex A hereto or which otherwise modifies I. Subject to this Section 1.1 and Annex I, the conditions and requirements to the Offer set forth in such Annex A or (v) amends any other term I are for the sole benefit of the Offer Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition or may be waived by the Purchaser, in a manner adverse its sole discretion, in whole or in part at any time and from time to the holders of Shares. time.
(b) Subject to the terms and conditions satisfaction of the Offer Minimum Condition and this Agreementthe satisfaction, Sub or waiver by the Purchaser (to the extent permitted by Annex I), of the other conditions and requirements set forth in Annex I, the Purchaser shall, and Parent shall cause Sub the Purchaser to, accept for payment, purchase payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon promptly as practicable and in any event not more than two Business Days after the expiration first Expiration Date upon which such conditions are satisfied or waived. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for paymentshall be paid, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or Law. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with Sections 3.2(ithis Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) and decrease the Offer Price, (jii) change the form of consideration payable in the Offer (other than adding consideration). Parent shall provide or cause , (iii) reduce the maximum number of Shares to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to purchased in the Offer.
, (iv) amend or waive the Minimum Condition or the conditions set forth in clause (b) Unless extended of Annex I, (v) add to or amend any of the other conditions and requirements to the Offer set forth in Annex I in a manner that is material and adverse to the holders of Shares, (vi) except as provided in Section 1.1(e), extend the Offer or (vii) otherwise amend the Offer in any manner that is material and adverse to the holder of Shares. 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 action with respect to its securities that is prohibited by the terms of this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall initially expire at midnight (New York City time) on the date (the “Initial Expiration Time”) that is twenty (20) 25 Business Days after the commencement of the Offer (determined pursuant to calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act). Sub may, without ) following the consent commencement of the CompanyOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended as required by or otherwise in accordance with this Agreement, the date and time to which the Offer has been so extended (ithe 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, 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 occasions, for any period not exceeding ten (10) successive periods of up to 20 Business Days for any extensioneach, if on any then-scheduled expiration date the length of each such period (subject to such 20 Business Day maximum) to be determined by Parent in its sole discretion, in order to permit the Offer any satisfaction of such conditions. In addition, the events set forth in Annex A Purchaser shall have occurred (and be continuing, until such time as such event or events Parent shall no longer exist, and (iicause the Purchaser to) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable its staff. Notwithstanding anything to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived contrary in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent Purchaser shall cause Sub to, not be required to extend the Offer through such time as for any reason beyond November 23, 2014 (the Company may specify, which time shall be no later than the Termination “Outside Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate”). Nothing in this Section 2.1(b1.1(e) shall affect be deemed to impair, limit or impair otherwise restrict in any termination rights under manner the right of Parent or the Company to terminate this Agreement pursuant to ARTICLE VIII7 hereof.
(cf) If all The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the conditions Company, except if this Agreement is terminated pursuant to ARTICLE 7. If this Agreement is terminated pursuant to ARTICLE 7, the Purchaser shall promptly (and in any event within 48 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the Offer are satisfied or waived, but the number purchase of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shallPurchaser shall promptly return, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) any depositary acting on behalf of the Purchaser to return, in accordance with Rule 14d-11 under the Exchange Act andapplicable Law, if applicable and all tendered Shares to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodregistered holders thereof.
(dg) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Sub the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall include include, as exhibits, the offer Offer to purchasePurchase, a form of the related letter of transmittal and a form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments amendments, supplements and supplements exhibits thereto, the “Offer Documents”). The Offer Documents will comply Purchaser may, in all material respects with its sole discretion, provide guaranteed delivery procedures for the applicable provisions tender of Shares in the Exchange ActOffer. Parent and Sub shall The Purchaser agrees to cause the Offer Documents to be disseminated to holders of Shares Shares, as and to the extent required by the Securities Act and the Exchange Act. The Company shall promptly furnish to Parent and the Purchaser in writing all information concerning the Company that may be required by applicable federal securities LawsLaws or reasonably requested by Parent or the Purchaser for inclusion in the Offer Documents. Parent and SubThe Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further , and the Purchaser agrees to take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawsthe Securities Act or the Exchange Act. 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 or disseminated to holders of SharesSEC, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to the Purchaser shall provide the Company and its counsel with copies of any comments or communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Sub the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments, and any written or communicationsoral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses to such comments or communications, and Parent and Sub the Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto nothing shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)that, and had the obligation of Sub Offer referred to accept for paymentbelow been commenced, purchase and pay for Shares tendered would give rise to a right to terminate the Offer pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) any of the conditions set forth in such Annex A. Sub I hereto, within five business days after the date hereof, Merger Subsidiary shall commence an offer (the "OFFER") to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "COMPANY STOCK") at a price of $5.75 per share, net to the seller in cash. 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 Stock that, together with the shares of Company Stock then owned by Parent and its Affiliates, represents at least a majority of the shares of Company Stock outstanding on a fully-diluted basis (the "MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except Offer; provided that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause Condition may not be waived and (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) that changes the form of consideration to be paid in paid, decreases the Offer, (iii) reduces price per share of Company Stock or the maximum number of Shares to be purchased shares of Company Stock sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies I. If any of the conditions set forth in to the Offer is not satisfied or waived on any scheduled expiration date of the Offer, Merger Subsidiary shall extend the Offer from time to time until such Annex A conditions are satisfied or (v) amends any other term waived; provided that Merger Subsidiary shall not be required to extend the Offer beyond August 1, 2001. Any individual extension of the Offer in a manner adverse pursuant to the holders of Sharespreceding sentence shall not exceed 10 business days. Subject to If at the terms and conditions expiration of the Offer all of the conditions to the Offer have been satisfied or 6 waived, Merger Subsidiary may (and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares if the number of shares of Company Stock validly tendered and not withdrawn pursuant to the Offer equals 80% or more, but less than 90% of the outstanding shares of Company Stock, shall) extend the Offer pursuant to an amendment to the Offer providing for a "subsequent offering period" not to exceed 20 business days to the extent permitted under, and in compliance with, Rule 14d-11 under the Securities Exchange Act of 1934, as soon amended (the "EXCHANGE ACT"). Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the expiration of date on which Merger Subsidiary first accepts shares for payment pursuant to the Offer (the date "ACCEPTANCE DATE"), all shares of acceptance for payment, the “Acceptance Date” Company Stock validly tendered and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for not withdrawn pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") with respect to the Offer, Offer (such Schedule TO and such documents included therein pursuant to which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectivelywill be made, together with any supplements or amendments and supplements thereto, the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubParent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares shares of Company Stock, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are prior to their being filed with the SEC or disseminated to the holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the shares of Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselStock.
Appears in 1 contract
The Offer. (a) Provided that Subject to the terms and conditions of this Agreement Agreement, Merger Sub shall, and Parent shall not have been terminated cause Merger Sub to, as promptly as practicable and in accordance with Section 8.1no event later than ten business days after the date hereof, Sub shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer as promptly as practicable after at a purchase price of $65.00 per Share, net to the seller in cash but subject to any required withholding of taxes (such price, or any higher price offered and paid by Merger Sub in its sole discretion in the Offer, the “Offer Price”).
(b) The initial expiration date of the Offer shall be 12:00 midnight, New York City Time, on the date hereof (but not later than the fifth (5th) Business Day from and including that is twenty business days following the date on which the Offer was commenced (the “Initial Expiration Date” and together with any expiration time and date established pursuant to an extension of initial public announcement of this Agreementthe Offer as so extended pursuant to the terms and conditions set forth herein, the “Expiration Date”). .
(c) The obligation of Merger Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject non-waivable condition that pursuant to the next sentence)) Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Shares which constitutes at least a majority of the outstanding Shares (excluding from the numerator of such calculation any shares held by stockholders that are affiliated with the Company, including the members of the Fairfax Group and the directors and executive officers of each of the Company, Merger Sub and Parent, as of the Acceptance Time) (the “Minimum Condition”) and (ii) the other conditions set forth in such Annex A. I hereto (together with the Minimum Condition, the “Offer Conditions”).
(d) Merger Sub expressly reserves the right to (i) increase the Offer Price and (ii) to waive any conditions to of the Offer Conditions or change to modify the terms of the Offer Offer, except that, without the prior written consent of the CompanyCompany (acting pursuant to a resolution adopted by both the Special Committee and the Company Board), Merger Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex Ashall not, and no change in Parent shall not permit Merger Sub to, do any of the following: (A) decrease the Offer may be made which (i) decreases the Offer Price payable in the OfferPrice, (ii) changes change the form of consideration to be paid in the Offer or decrease the number of Shares subject to the Offer, (iiiB) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes impose any conditions to the Offer in addition to those other than the Offer Conditions set forth in Annex A I hereto or which otherwise modifies modify any of the conditions Offer Conditions set forth in such Annex A or (v) amends I hereto in any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of , (C) otherwise amend or modify the Offer in a manner that would materially and adversely affect the holders of Shares, (D) amend, modify or waive the Minimum Condition and (E) except as otherwise provided in this AgreementSection 1.01(d), Sub shallextend the Offer. Notwithstanding the foregoing, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or unless this Agreement has been terminated in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for paymentSection 8.01, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Merger Sub may, without the consent of the CompanyCompany (or the Special Committee or Company Board), (iI) extend the Offer on for one or more occasions for any period consecutive increments of not exceeding more than ten (10) Business Days for any extensionbusiness days each, if on at any then-otherwise scheduled expiration date Expiration Date any of the Offer any of the events set forth in Annex A Conditions shall not have occurred and be continuingbeen satisfied or, until such time as such event or events shall no longer existif permissible, and waived; (iiII) extend the Offer for any minimum period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. If, at ; or (III) if Shares have been accepted for payment but the Initial Expiration Time or subsequent expiration time related to an extension number of shares of Common Stock collectively owned by the Fairfax Group is less than 90% of the Offerthen outstanding shares of Common Stock, including extend the Offer for an extension pursuant to this sentence, any aggregate period of not more than fifteen business days (for all such extensions) beyond the date on which Shares are first accepted for payment as a “subsequent offering period” (as such term is defined in Rule 14d-1(g)(8) under the Exchange Act) in accordance with Rule 14d-11 of the conditions to the obligation of Sub to accept for paymentExchange Act. In addition, purchase and pay for Shares tendered pursuant to the if at any otherwise scheduled Expiration Date any Offer Condition has not been satisfied (or waived in accordance with this Agreement)waived, then, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, at the request of the Company (acting pursuant to a resolution of the Special Committee), extend the Expiration Date for one or more consecutive increments of not more than ten business days each until the earliest to occur of (x) the satisfaction or waiver of such Offer through such time as the Company may specifyConditions, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any (y) termination of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived this Agreement in accordance with this Agreement its terms, and (other than any such conditions that are not so satisfied or waived under circumstances in which z) the breach or breaches preventing such conditions from being satisfied mayOutside Date. In addition, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Merger Sub to) provide , at the request of the Company (acting pursuant to a resolution of the Special Committee), make available a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act andof not less than ten business days; provided that Merger Sub shall not be required to make available such a subsequent offering period in the event that, if applicable and prior to the extent permitted under such Rule 14d-11, thereafter extend commencement of such subsequent offering period, the Fairfax Group collectively holds at least 90% of the outstanding shares of Common Stock.
(de) As soon Upon the expiration of the Offer, 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, as practicable on promptly as practicable, all Shares validly tendered and not properly withdrawn pursuant to the date Offer (including any subsequent offering period). The time that Merger Sub accepts for payment the Shares tendered pursuant to the Offer is commenced, referred to herein as the “Acceptance Time”.
(f) Parent and shall provide or cause to be provided to Merger Sub shall file with the SEC on a Tender Offer Statement on Schedule TO with respect timely basis all funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article IX and none of the events set forth in ANNEX A shall have occurred and be existing, Sub as promptly as reasonably practicable (but in no event later than five business days from the public announcement of the execution of this Agreement), Purchaser shall commence (within the meaning of Rule 14d-2(a) of 14d-2 promulgated under the Exchange Act) the Offer as promptly as practicable after to acquire all the date hereof (but not later than the fifth (5th) Business Day from and including the date outstanding Shares at a price of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only $13.00 per Share, net to the condition that none of the events set forth seller in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion)cash, and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) applicable withholding of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thattaxes, without the prior written consent of the Companyinterest (such price, Sub or such higher price per Share as may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, being referred to herein as the "OFFER PRICE"). Subject to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver of the other conditions set forth in ANNEX A, Purchaser shall consummate the Offer in accordance with its terms and promptly accept for payment and pay for Shares validly tendered pursuant to the Offer and not withdrawn as soon as Purchaser is legally permitted to do so under applicable law. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") and shall be subject to the Minimum Condition and the other conditions set forth in ANNEX A hereto, and shall reflect, as appropriate, the other terms set forth in this Agreement. Parent and Purchaser expressly reserve the right, in their sole discretion, subject to compliance with the Exchange Act and the terms of this Agreement, to waive any such condition and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that Parent and Purchaser shall not (i) amend or waive the Minimum Condition, (ii) decrease the Offer Price, (iii) reduces decrease the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iv) imposes conditions to waive or satisfy the Offer in addition to those Financing Condition (as defined herein) unless the representation set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A Section 5.04 shall be true and correct, or (v) amends amend any other term or condition of the Offer in a any manner or impose any term or condition that is adverse to the holders of Sharesthe Shares without the written consent of the Company executed by the Chief Executive Officer of the Company stating that it was authorized by the Company Board or a duly authorized committee thereof. Subject Notwithstanding any other provision hereof, Parent and Purchaser expressly reserve the right (but will have no obligation to), in their sole discretion, subject to compliance with the Exchange Act and the terms and conditions of the Offer and this Agreement, Sub shallto waive the Financing Condition. Unless otherwise stated, all references in this Agreement to Company Common Stock and Parent Shares shall cause Sub to, accept for payment, be deemed to include the associated preferred stock purchase and pay for all Shares validly tendered and not withdrawn rights (the "RIGHTS") issued pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the OfferRights Agreement.
(b) Unless Notwithstanding the foregoing, in the event that any condition to the Offer set forth in ANNEX A shall not have been satisfied or waived at the scheduled or any extended expiration date of the Offer, Purchaser shall (unless otherwise notified by the Company in writing), and Purchaser shall otherwise be entitled to, extend the expiration date of the Offer in increments of up to 5 business days each (unless otherwise agreed by Parent and the Company) until the earliest to occur of (x) the satisfaction or waiver of each such condition and (y) the termination of this Agreement in accordance with its terms; PROVIDED, HOWEVER, that Purchaser shall not be required to extend the Offer as provided in this Agreementsentence if any such condition (other than the Financing Condition) is incapable of being satisfied. In addition, without limiting the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing(i) as required by applicable law, until such time as such event or events shall no longer exist(ii) pursuant to Section 7.10, and (iiiii) extend for up to 5 business days if, on the Offer for scheduled or any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent extended expiration time related to an extension date of the Offer, including an extension the Shares validly tendered pursuant to this sentencethe Offer and not withdrawn represent more than 80% but less than 90% of the outstanding Shares, notwithstanding that all the conditions to the Offer set forth in ANNEX A have been satisfied, so long as Purchaser waives the further satisfaction of any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later other than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions condition set forth in clause paragraph (v)(b) or (v)(ca) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregateA). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commencedcommenced (the "Offer Commencement Date"), Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall include contain or shall incorporate by reference the offer Offer to purchase, form Purchase and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being referred to herein collectively as the “"OFFER DOCUMENTS"). Parent and Purchaser shall mail the applicable Offer Documents”)Documents to the stockholders of the Company as soon as practicable after filing with the SEC. The Offer Documents will shall comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Lawslaws. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to shall correct promptly correct any information provided by it for use in the Offer Documents if it which shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub respect, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1, as so corrected corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents before they are prior to their being filed with with, or sent to, the SEC or disseminated to holders of Shares, and SEC. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments comments.
(d) Parent shall provide or communications. The Company and its counsel cause to be provided to Purchaser on a timely basis the funds necessary to purchase all the Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
(e) Purchaser shall be given a reasonable opportunity entitled to review deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as be required to be deducted and withheld with respect to the making of such payment under the Code or under any responses provision of state, local or foreign tax law; PROVIDED, HOWEVER, that Purchaser shall promptly pay any amounts deducted and withheld hereunder to the applicable Governmental Entity, shall promptly file all Tax Returns and reports required to be filed in respect of such comments or communicationsdeductions and withholdings, and Parent and Sub shall give due consideration promptly provide to all reasonable additions, deletions or changes suggested thereto by the Company proof of such payment and its counsela copy of all such Tax Returns and reports.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence 7.1 and (within the meaning of Rule 14d-2(aii) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events no event set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not unless such event shall have been waived by Parent or Sub in their sole discretionthe Company, as applicable), as promptly as practicable following the effective date of the Registration Statement referred to in Section 1.1(d) below (the "EFFECTIVE DATE"), Parent shall commence the Offer for any and all of the Shares at the various Exchange Ratios contemplated by Section 1.1(b) below. The obligation of Sub Parent to accept for payment, purchase and pay first issue shares of Parent Common Stock in exchange for Shares tendered pursuant to the Offer (the "FIRST CLOSING") shall be subject only to (i) the valid acceptances of the Offer (and not, where permitted, withdrawn) by holders of at least ninety percent (90%) in nominal value of each of the issued B Preferred Shares, the issued A Ordinary Shares and the issued Ordinary Shares to which the Offer relates (the "MINIMUM CONDITION") (and the expression "Offer" shall be construed in accordance with section 428 of the United Kingdom Companies Act 1985 (the "COMPANIES ACT")), and (ii) the satisfaction (or waiver by Parent or Sub (in their sole discretion accordance with the terms of this Section 1.1 (but subject to the next sentencea)) of the other conditions set forth in such Annex A. Sub expressly reserves the right to waive Parent shall not make any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition changes in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer without the prior written approval of the Company. It is agreed that the conditions set forth in Section 1 of Annex A are for the sole benefit of Parent and this Agreementmay be waived by Parent (and only by Parent), Sub shallin whole or in part at any time and from time to time, in its sole discretion. It is agreed that the conditions set forth in Section 2 of Annex A are for the sole benefit of the Company and may be waived by the Company (and only by the Company), in whole or in part at any time and from time to time, in its sole discretion. To evidence the satisfaction of the conditions set forth in Section 2 of Annex A, the Company shall deliver to Parent on the First Closing Date (as defined below) a certificate, executed by the Chief Executive Officer of the Company, indicating the Company's concurrence that the conditions set forth in Section 2 of Annex A shall have been satisfied. Parent shall cause Sub to, accept not be permitted to issue Parent Common Stock in exchange for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer until after it has received the certificate described in the preceding sentence from the Company. The failure by Parent or the Company, as soon as practicable after the expiration case may be, at any time to exercise any of the Offer (the date foregoing rights shall not be deemed a waiver of acceptance for paymentany such right, the “Acceptance Date” and the each such right shall be deemed an ongoing right that may be asserted at any time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject and from time to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offertime.
(b) Unless extended The consideration to be offered by Parent to the holders of Ordinary Shares, A Ordinary Shares and B Preferred Shares in the Offer shall be as provided follows:
(i) Each holder of Ordinary Share(s) shall be entitled to receive 0.88637 of a share of Parent Common Stock for each Ordinary Share held (the "ORDINARY SHARE EXCHANGE RATIO").
(ii) Each holder of A Ordinary Share(s) shall be entitled to receive 2.75326 shares of Parent Common Stock for each A Ordinary Share held (the "A ORDINARY SHARE EXCHANGE RATIO").
(iii) Each holder of B Preferred Share(s) shall be entitled to receive 2.61560 shares of Parent Common Stock for each B Preferred Share held (the "B PREFERRED EXCHANGE RATIO" and, together with the Ordinary Share Exchange Ratio and the A Ordinary Share Exchange Ratio, the "EXCHANGE RATIOS"); provided, however, that the maximum number of shares of Parent Common Stock to be issued by Parent (x) pursuant to the Offers and (y) in connection with the Compulsory Acquisition contemplated by Section 5.7 hereof, to the extent applicable, and (z) upon exercise (whenever exercised) of the options to acquire Parent Common Stock received in exchange for Company Options (as defined below) pursuant to the Option Offer (as defined below), is 29,500,000 (the "TOTAL SHARE CONSIDERATION"). Section 1.1(b) of the Company Disclosure Letter sets forth the proposed allocation of the Total Share Consideration among the holders of Shares and/or Company Options as of the date hereof; provided, however, that the Company may, prior to the commencement of the Offer by Parent pursuant to Section 1.1(a) above, provide a written update of such allocation to Parent, and Parent shall be entitled to rely exclusively on such written update in allocating the Total Share Consideration among the holders of Shares and/or Company Options, as appropriate. In the event that the total number of shares of Parent Common Stock issued, or to be issued, pursuant to the transactions identified in (x), (y) and (z) of this AgreementSection 1.1(b) above following application of the Exchange Ratios set forth in Section 1.1(b)(i)-(iii) above shall be less than the Total Share Consideration, then an additional number of shares of Parent Common Stock shall be issued on a pro rata basis to the holders of Shares and Company Options so that the total number of shares of Parent Common Stock issued, or to be issued, pursuant to the transactions identified in (x), (y) and (z) of this Section 1.1(b) shall be equal to the Total Share Consideration. Each holder's "pro rata" amount shall be a fraction, the numerator of which is the number of shares of Parent Common Stock issued, or to be issued, to such holder of Shares in the Offer or Company Options under the Option Offer and the denominator of which is the number of shares of Parent Common Stock issued, or to be issued, to all holders of Shares in the Offer and all holders of Company Options in the Option Offer.
(c) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date (the “Initial Expiration Time”) that is the later of (i) twenty (20) Business Days after the commencement of date the Offer is commenced and (determined pursuant to Rule 14d-1(g)(3ii) under five (5) Business Days following the Exchange Act). Sub maydate on which the Parent Stockholder Approvals (as defined in Section 1.1(f) hereof) shall have been received; provided, without the consent of the Companyhowever, that (i) Parent shall (A) from time to time, extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionOffer, if on any then-at the scheduled expiration date of the Offer any of the events set forth in Annex A conditions to the Offer shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer existwaived, and but not beyond the Final Date (iias defined in Section 7.1(b)(ii)), (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or United States Securities and Exchange Commission (the staff thereof "SEC") applicable to the Offer, and (C) extend the Offer or the Option Offer for any period required by the rules of any Company Share Option Scheme. If, at Subject to the Initial Expiration Time or subsequent expiration time related to an extension terms and conditions of the OfferOffer and this Agreement, including an extension pursuant to this sentenceon the First Closing Date (as defined below) and each Subsequent Closing Date (as defined below) Parent shall issue shares of Parent Common Stock in exchange for all Shares in respect of which valid acceptances have been received by such date (and not, any of the conditions to the obligation of Sub to accept for paymentwhere permitted, purchase and pay for Shares tendered withdrawn) pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by pursuant to the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions compulsory acquisition procedures set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”)5.7. The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. The Company and its counsel "FIRST CLOSING DATE" shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.second Business Day following
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in accordance with Section 8.1Annex I hereto, Sub as promptly as practicable and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from Offer. Merger Subsidiary’s obligation to accept for payment and including the date of initial public announcement of this Agreement). The obligation of Sub to commence pay for any Company Shares tendered in the Offer shall be subject only to the condition that none there shall be validly tendered in accordance with the terms of the events set forth in clauses Offer, immediately prior to the scheduled expiration of the Offer (v)(aas it may be extended hereunder) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent or Sub in their sole discretion)Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer or and to make any change in the terms of or conditions to the Offer except thatOffer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer Condition may not be made which (i) decreases the Offer Price payable in the Offerwaived, (ii) no change may be made that changes the form of consideration to be paid in pursuant to the Offer, (iii) reduces decreases the maximum Offer Price or the number of Company Shares to be purchased sought in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto I, or which otherwise modifies amends the conditions set forth in such Annex A or (v) amends I in any other term of the Offer in a manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to unless the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or is extended in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) 21 Business Days after the commencement of the Offer (determined pursuant to Rule for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act)▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Sub mayUnless this Agreement or the Offer is terminated in accordance with its terms, without the consent of the Company, (i) Merger Subsidiary shall extend the Offer on one from time to time (1) if, at the scheduled or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled extended expiration date of the Offer Offer, the Minimum Condition or any of the events conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex A I shall not have occurred and be continuingbeen satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such time as such event or events shall no longer existconditions and (y) the End Date, and (ii2) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. If, at the Initial Expiration Time or subsequent Following expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied Merger Subsidiary may, by their naturein its sole discretion, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act and, if applicable and 1934 Act. Subject to the extent permitted under foregoing, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Rule 14d-11Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, thereafter extend such subsequent offering periodsubject to reduction for any applicable withholding Taxes.
(db) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the offer Offer to purchase, form Purchase and forms of the related letter of transmittal and form summary advertisement, if any, in respect of notice of guaranteed delivery and all other ancillary the Offer documents (collectively, together with any amendments and or supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent , and Sub shall (ii) cause the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable federal securities Lawslaws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Parent and SubEach of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, agree Company agrees promptly to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if it and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares Company Shares, in each case as and to the extent required by applicable U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC or disseminated to holders of SharesSEC, and Parent and Sub Merger Subsidiary shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by the Company and its counsel. In addition, Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such those comments or other communications. The Company , and its counsel shall be given (B) a reasonable opportunity to review any responses to such comments or communications, and participate in the response of Parent and Sub Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall give due consideration to all reasonable additionsbe given), deletions including by participating with Parent and Merger Subsidiary or changes suggested thereto by their counsel in any discussions or meetings with the Company and its counselSEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.01 hereof, as promptly as practicable (but in any event within five business days of the date of this Agreement), the Purchaser shall cause the Sub shall to commence (within the meaning of Rule 14d-2(a14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase all outstanding shares of Common Stock (including scrip) and Preferred Stock not owned by the Purchaser or the Sub at a price of $0.60 per share of Common Stock (including scrip), net to the seller in cash and $2.50 per share of Preferred Stock, net to the seller in cash, which offer shall remain open for at least 20 business days (the "Offer") and, subject to the conditions of the Exchange Act) Offer set forth in Exhibit A hereto, shall use its best efforts to consummate the Offer Offer, including, if necessary, conversion of convertible loans including a $3,500,000 credit facility and options outstanding into Common Stock or Preferred Stock of the Company, as promptly as practicable after the date hereof (but not later than case may be, in order to consummate the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation obligations of the Purchaser and the Sub to commence consummate the Offer Offer, to accept for payment and to pay for any shares of Common Stock and Preferred Stock tendered shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the those conditions set forth in such Annex A. Exhibit A hereto.
(b) Neither the Purchaser nor the Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except thatwill, without the prior written consent of the Board of Directors of the Company, Sub may not waive decrease the condition in clause (i) amount or change the form of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price consideration payable in the Offer, (ii) changes decrease the form number of consideration shares of Common Stock or Preferred Stock sought pursuant to be paid in the Offer, (iii) reduces change the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer, impose additional conditions or terms to the Offer, amend or waive the condition that there be validly tendered and not properly withdrawn prior to the expiration of the Offer in addition a number of shares of Common Stock and Preferred Stock which when added to those set forth in Annex A hereto the number of shares of Common Stock and Preferred Stock owned by the Purchaser and its affiliates constitutes at least two-thirds of the then outstanding shares of Common Stock and two- thirds of the then outstanding shares of Preferred Stock, respectively, on a fully diluted basis, or which otherwise modifies the conditions set forth in such Annex A or (v) amends amend any other term of the Offer in a any manner adverse to the holders of Sharesshares of Common Stock or Preferred Stock. Subject Assuming the prior satisfaction or waiver of the conditions to the Offer, the Purchaser covenants and agrees to accept for payment and pay for, in accordance with the terms and conditions of the Offer Offer, shares of Common Stock and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly Preferred Stock tendered and not withdrawn pursuant to the Offer as soon as practicable after it is permitted to do so under applicable Law, provided that the expiration Purchaser and the Sub shall have the right, upon consultation with the Company, to extend the Offer (if without such extension the Purchaser would be unable to consummate the Offer) to a date not later than the 35th business day following the commencement of the Offer (the date of acceptance or for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) such longer period as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes may be required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the OfferLaw.
(bc) Unless extended as provided Notwithstanding anything to the contrary in this Agreement, the Purchaser and the Sub further agree that, subject to the terms and conditions of this Agreement, in the event that the conditions to the Offer set forth in paragraphs (a) or (b) of Exhibit A hereto shall expire on occur or exist (and shall not have been waived), the Sub shall, at the Company's request, extend the Offer to a date (not later than the “Initial Expiration Time”) that is twenty (20) Business Days after 40th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub mayOffer; provided, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionhowever, if on any then-scheduled expiration date of the Offer any of the events condition set forth in Annex paragraph (d)(i) of Exhibit A shall not have occurred been satisfied, the Purchaser and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), thenshall, if reasonably requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as for five business days to enable the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request cure such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodbreach.
(d) As soon as practicable on or before the date of commencement of the Offer is commencedOffer, Parent but not later than five business days after the execution of this Agreement, the Purchaser and the Sub shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, Offer which shall include will contain the offer to purchase, purchase and form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any supplements or amendments and supplements thereto, the “"Offer Documents”"). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and SubLaws and, on the one handdate filed with the SEC and on the date first published, sent or given to the holders of the Common Stock and Preferred Stock of the Company, on 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 other handstatements therein, agree in light of the circumstances under which they were made, not misleading, except that no representation is made by the Purchaser or the Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. The Purchaser, the 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 it shall be discovered to have been or to have become false or misleading in any material respect or as otherwise required by applicable Law. and the Purchaser and the Sub each further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the holders of Shares the Common Stock and Preferred Stock of the Company, in each case as and to the extent required by applicable federal securities Laws. The Company Purchaser and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel in writing with any comments or communicationsthe Purchaser, whether written or oral, that Parent, the Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselcomments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.18.1 and none of the events set forth in Annex I hereto shall have occurred and be continuing, Sub Purchaser shall commence (within the meaning of Rule 14d-2(a) 14d-2 under the Securities Exchange Act of 1934, as amended (together with the Exchange Actrules and regulations promulgated thereunder, the "EXCHANGE ACT")) the Offer as promptly as practicable after following the date hereof (but not in no case later than the fifth (5th) Business Day ten business days from and including the date of initial public announcement of this Agreementhereof). The obligation obligations of Sub Purchaser to commence accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to (i) there being validly tendered and not withdrawn prior to the condition that none expiration of the events Offer that number of Shares which, together with the Shares then owned by Parent or Purchaser (after giving effect to shares subject to purchase under the Stockholders Agreement, but not the Purchaser Option), represents at least two-thirds of the Shares outstanding on a Fully Diluted Basis (the "MINIMUM CONDITION"); and (ii) the other conditions set forth in clauses (v)(a) or (v)(b) of Annex A hereto I hereto. As used in this Agreement, "FULLY DILUTED BASIS" shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant refer to the number of Shares issued and outstanding at any time after taking into account all Shares issuable upon the conversion of convertible securities or upon the exercise of any options, warrants or rights to purchase shares of Company Capital Stock (for which the applicable per share exercise price is less than the Offer shall be subject only Price). Subject to the prior satisfaction (or waiver by Parent or Sub Purchaser of the Minimum Condition and the other conditions of the Offer set forth in their sole discretion (but subject Annex I hereto, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the next sentence)Offer. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") of that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in such Annex A. Sub I hereto. Parent expressly reserves the right to waive any conditions of such conditions, to increase the Offer or change Price and to make any other changes in the terms of the Offer; provided however, that Purchaser shall not, and Parent shall cause Purchaser not to, decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer (the "INITIAL EXPIRATION DATE") except thatas set forth below, or amend any other condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company, Sub may not waive the condition in clause Company (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration such consent to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated authorized by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto Company Board of Directors or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (jduly authorized committee thereof). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for paymentNotwithstanding the foregoing, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for beyond the Initial Expiration Date if, at any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer Offer, any of the events set forth in Annex A conditions to Purchaser's obligation to accept Shares for payment shall have occurred and not be continuingsatisfied or waived, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC United States Securities and Exchange Commission ("SEC"), or the staff thereof thereof, applicable to the Offer. If, at or (iii) extend (or re-extend) the Initial Expiration Time Offer for an aggregate period of not more than twenty (20) business days (taking into account all such extensions and re-extensions) beyond the latest applicable date that would otherwise be permitted under clause (i) or subsequent expiration time related to an extension (ii) of the Offer, including an extension pursuant to this sentence, any if, as of the conditions to the obligation of Sub to accept for paymentsuch date, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer Purchaser's obligations to accept for payment Shares are satisfied or waived, but the number of Shares there shall not have been validly tendered and not withdrawn, together with withdrawn pursuant to the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the Offer that number of Shares required necessary on a Fully Diluted Basis to consummate permit the Merger pursuant to Section 2.10 (assuming the exercise be effected without a meeting of the TopCompany's stockholders in accordance with the DGCL; provided that Purchaser (in connection with any extension or re-Up Option extension under clause (iii)) meets the requirements of Rule 14d-l 1 under the Exchange Act. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by applicable law in full)connection with such increase, then, upon in each case without the applicable expiration time consent of the Company.
(b) On the date of commencement of the Offer, Sub may (Parent and if Purchaser shall file with the Company so requests Sub shallSEC, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 pursuant to Regulation M-A under the Exchange Act and("REGULATION M-A"), if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the "SCHEDULE TO"). The Schedule TO shall include the offer summary term sheet required under Regulation M-A and, as exhibits, the Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”"OFFER DOCUMENTS"). The Company hereby consents to the inclusion in the Offer Documents will comply in all material respects with the applicable provisions of the Exchange Actrecommendation referred to in clause (iii) of Section 3.24 and the approval of the Board of Directors referred to in Section 3.24. Parent and Sub shall Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities Lawslaws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawlaw. Sub Parent and Purchaser further agrees 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 Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents Schedule TO before they are it is filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselSEC. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel with any comments or communicationscomments, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communicationscomments, and any written or oral responses thereto.
(c) Parent shall provide or cause to be provided to Purchaser upon expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to immediately accept for payment, and Sub shall give due consideration pay for, any shares of Company Common Stock that are validly tendered and not withdrawn pursuant to all reasonable additions, deletions or changes suggested thereto by the Company Offer and its counselthat Purchaser is permitted to accept for payment under applicable law pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Signalsoft Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex Exhibit A hereto shall have occurred or be existing, or any such occurrence or existence shall have been waived in writing by Purchaser, Purchaser shall, and be continuing Parent shall cause Purchaser to, as promptly as practicable (and not waived by Parent or Sub but in their sole discretionno event later than ten (10) Business Days following the public announcement of the execution of this Agreement) commence (within the meaning of Rule 14d-2 under the Exchange Act), an offer to purchase all outstanding Common Shares (including those Common Shares issuable in respect of Existing Stock Options that have been "conditionally exercised" by the holder thereof for purposes of participating in the Offer), at a price (such price, or any higher price as may be paid in the Offer, the "OFFER PRICE") of $12.00 per Share, in cash (such tender offer, as it may be amended and supplemented from time to time as permitted under this Agreement, the "OFFER"). The obligation of Sub Purchaser to consummate the Offer and to accept for payment, purchase payment and pay for any Shares tendered pursuant thereto shall be subject to the terms and conditions set forth in this Agreement and to those conditions set forth in Exhibit A (the "OFFER CONDITIONS"), any of which may be waived by Purchaser in its sole discretion and without any consent of the Company. The initial expiration date of the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to twentieth US Business Day following the next sentence)) commencement of the conditions set forth in such Annex A. Sub Offer. Purchaser expressly reserves the right to waive any conditions to the Offer or change modify the terms of the Offer Offer, except that, without the prior written consent of the Company, Sub may Purchaser shall not waive the condition in clause (iA) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases decrease the Offer Price or change the form of the consideration payable in the Offer, (iiB) changes decrease the form number of consideration Shares sought pursuant to be paid in the Offer, (iiiC) reduces impose additional conditions to the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (ivD) imposes change the conditions to the Offer (other than a reduction in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A Minimum Tender Condition) or (vE) amends make any other term change in the terms or conditions of the Offer in a manner which is adverse to the holders of Common Shares. .
(b) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Offer and this AgreementConditions as of any scheduled expiration of the initial offering period of the Offer, Sub shall, and Parent Purchaser shall cause Sub to, accept for payment, purchase and pay for all payment Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any such Shares promptly after such scheduled expiration. Notwithstanding the foregoing, Purchaser and all Shares that Sub becomes obligated Parent shall have the right to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extensionOffer, from time to time, if on any then-scheduled at the expiration date of the Offer (with respect to either the initial offering period or an extended offering period, as the case may be) any of the events set forth in Annex A shall conditions to the Offer have occurred and be continuingnot been satisfied or waived, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(ciii) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request elect to provide one or more extensions subsequent offering periods pursuant to Rule 14d-11 of the Offer pursuant to this sentence for up to thirty Exchange Act (30) days in collectively, the aggregate"SUBSEQUENT PERIOD"). Nothing In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIconnection with such increase in each case without the consent of the Company.
(c) If all On the date of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time commencement of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub Purchaser shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, Offer which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents 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 provisions US federal securities laws and shall contain the offer to purchase and related letter of transmittal and other ancillary Offer documents and instruments pursuant to which the Exchange ActOffer will be made (collectively with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Parent The Company and Sub its counsel shall cause be given a reasonable opportunity to review and comment on the Offer Documents prior to be disseminated their filing with the SEC. Purchaser agrees to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on provide the one handCompany with, and to consult with the CompanyCompany regarding, on any comments that may be received from the SEC or its staff or any other handregulatory authority with respect to the Offer Documents promptly after receipt thereof. Parent, Purchaser and the Company each agree promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub and Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Common Shares and Existing Stock Options, 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 the Offer Documents before they are filed with the SEC or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsellaw.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A I hereto shall have occurred or be existing, Purchaser shall, as promptly as practicable after the date hereof, but in no event later than five business days following the public announcement of the terms of this Agreement, commence an offer (the "Offer") to purchase any and be continuing all of the outstanding shares of common stock, $1.00 par value (and not waived by Parent or Sub in their sole discretionthe "Shares"), and of the obligation Company at a price of Sub to accept for payment$40.00 per Share, purchase and pay for Shares tendered pursuant net to the seller in cash. The Offer shall be subject only to the satisfaction (or waiver condition that at least a majority of the then issued and outstanding Shares, other than Shares owned by Parent or Sub Purchaser, Parent, Parent's other subsidiaries and Parent's executive officers and directors, shall have been validly tendered in their sole discretion (but subject accordance with the terms of the Offer prior to the next sentence)) expiration date of the Offer and not withdrawn (the "Minimum Tender Condition") and to the other conditions set forth in such Annex A. Sub I hereto. Purchaser expressly reserves the right to waive the Minimum Tender Condition or any of the other conditions to the Offer, to increase the price per Share payable in the Offer or and to make any other change in the terms or conditions of the Offer; provided that (i) Parent shall not waive the Minimum Tender Condition without the consent of a majority of the Independent Directors (as defined below) and (ii) without the consent of a majority of the Independent Directors, the Purchaser shall not make any change in the terms or conditions of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (iiA) changes the form of consideration to be paid or (B) decreases the price per Share payable in the Offer, Offer or (iiiC) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (ivD) imposes conditions to the Offer in addition to those set forth in Annex A I hereto or which otherwise modifies (E) extends the conditions set forth expiration date of the Offer (except as required by law or the applicable rules and regulations of the SEC and except that the expiration date of the Offer may be extended for up to forty (40) business days in such Annex A the aggregate in the event any condition to the Offer is not satisfied) or (vF) amends any other term of the Offer in a any manner materially adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub the Purchaser shall file with the SEC (as defined in Section 4.07) with respect to the Offer, a Tender Offer Statement on Schedule TO with respect to the Offer, 14D-l and a Transaction Statement on Schedule 13E-3 which shall include will contain the offer to purchase, the information required by Rule 13e-3 under the Exchange Act (as defined in Section 4.03), the form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents an 6 amendment to Parent's Schedule 13D (collectively, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”"). The Offer Documents will comply in all material respects with Parent, the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, Purchaser and the Company, on the other hand, agree Company each agrees promptly to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have been found to be or become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees Parent and the Purchaser 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 Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company Company, the Special Committee (as defined herein) and its counsel their respective counsel, shall be given a reasonable an opportunity to review and comment on the Offer Documents before they are filed Schedule 14D-l and the Schedule 13E-3 prior to the filing thereof with the SEC or disseminated to holders of Shares, and SEC. Parent and Sub the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company Company, the Special Committee and its counsel their respective counsel, a copy of any written comments or communications, whether written telephonic notification of any verbal comments Parent or oral, that Parent, Sub or their counsel the Purchaser may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s the receipt thereof and shall provide the Company, the Special Committee and their respective counsel with a copy of any written responses thereto and telephonic notification of any verbal responses thereto of Parent or Sub’s, as the case may be, receipt of such comments Purchaser or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its their counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1Article VIII and none of the conditions set forth in Annex I hereto (the "Tender Offer Conditions") shall exist after the date hereof and ----------------------- prior to the commencement of the Offer, Sub as promptly as practicable, but not later than 10 business days following the date hereof, Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) an offer to purchase all outstanding Shares at the Offer Price and shall take the actions set forth in Section 1.3 below and shall take all other actions as promptly as practicable after the date hereof required by any order, writ, injunction, judgment, arbitration award, agency requirement, decree, law, statute, ordinance, rule or regulation (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreementeach a "Law"). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub Purchaser to accept for payment, purchase and payment or --- pay for any Shares tendered pursuant to the Offer shall thereto will be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Tender Offer or change the terms of the Offer except that, without Conditions.
(b) Without the prior written consent of the CompanySpecial Committee, Sub may Purchaser shall not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes impose conditions to the Offer in addition to those set forth in Annex A hereto the Tender Offer Conditions, (ii) modify or which otherwise modifies amend the conditions set forth in such Annex A Tender Offer Conditions or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject , (iii) reduce the number of Shares subject to the terms and conditions Offer, (iv) reduce the Offer Price, (v) except as provided in the following sentence, extend the Offer if all of the Tender Offer and this AgreementConditions are satisfied or waived, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (vi) change the form of consideration payable in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following Offer. Notwithstanding the valid tender thereof without interestforegoing, subject to any withholding of Taxes required by applicable Law or Purchaser may, in accordance with Sections 3.2(i) applicable Law, and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub may, without the consent of the CompanySpecial Committee, extend the Offer at any time, and from time to time, (i) extend if at the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer Offer, any of the events set forth in Annex A Tender Offer Conditions shall not have occurred and be continuing, until such time as such event been satisfied or events shall no longer exist, and waived; or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer; for an aggregate period of not more than 20 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i) or (ii) of this sentence (such aggregate period, the "Subsequent Offering Period"). If-------------------------- So long as this Agreement is in effect, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has been commenced, the Tender Offer Conditions have not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, extend cause the Offer through such time as not to expire, subject, however, to Purchaser's and Parent's rights of termination under this Agreement. Parent and Purchaser shall comply with the Company may specify, which time shall be no later than obligations respecting prompt payment and announcement under the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIIIExchange Act.
(c) If all of the conditions to Parent and Purchaser represent that the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent Documents (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”as defined in Section 1.3(a), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities LawsLaws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub and Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Shares the Company, in each case, as and to the extent required by applicable federal securities Laws. The Company and its counsel .
(d) Parent shall provide or cause to be given provided to Purchaser on a reasonable opportunity timely basis funds sufficient to review and comment on the Offer Documents before they are filed with the SEC or disseminated to holders of Sharesaccept for payment, and Parent pay for, any and Sub shall give due consideration all Shares that Purchaser becomes obligated to all reasonable additionsaccept for payment, deletions or changes suggested thereto by the Company and its counsel. In additionpay for, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect pursuant to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.1 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex Exhibit A --------- attached hereto and made a part hereof shall have occurred and or be continuing existing (and not unless such event shall have been waived by Parent or Sub in their sole discretionParent), Parent shall cause Purchaser to commence, and Purchaser shall commence as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, the Offer at the Per Share Amount. The obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the satisfaction condition (the "Minimum Condition") that the number of Shares that, when combined with the Shares already owned by Purchaser and its direct or waiver by Parent or Sub in their sole discretion indirect subsidiaries, constitute at least eighty percent (but subject to the next sentence)80%) of the then outstanding Shares shall have been validly tendered and not withdrawn prior to the expiration of the Offer, and (ii) the satisfaction or waiver of the other conditions set forth in such Annex A. Sub Exhibit A attached hereto. Purchaser expressly reserves --------- the right to waive any conditions such condition (other than the Minimum Condition), to increase the Offer or change Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer except that(notwithstanding Section 8.3); provided, without the prior written consent of the Companyhowever, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and that no change in the Offer may be made which (i) decreases the Offer Price Per Share Amount payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum ConditionOffer, (iviii) imposes conditions to the Offer in addition to those set forth in Annex Exhibit A hereto or which otherwise modifies the conditions set forth in such Annex A or hereto, (viv) amends any other term or changes the terms and --------- conditions of the Offer in a any manner materially adverse to the holders of SharesShares (other than Parent and its subsidiaries) or (v) changes or waives the Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller, without interest thereon, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition) and this Agreementunless the Company otherwise consents in writing, Sub shall, and Parent Purchaser shall cause Sub to, accept for paymentpayment and pay, purchase and pay as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offerwithdrawn.
(b) Unless extended As soon as provided reasonably practicable on the date the Offer is commenced, but in no event later than the fifth business day after the date of this Agreement, Purchaser shall file with the Securities and Exchange Commission ("SEC") and disseminate to holders of Shares, to the extent required by law, a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase the Shares, (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC. The written information supplied or to be supplied by the Company for inclusion in the Offer Documents will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. Parent and Purchaser will provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent or Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof and will provide the Company and its counsel with a copy of any written response and telephonic notification of any oral response of Parent, Purchaser or their counsel. In the event that the Offer is terminated or withdrawn by Purchaser, Parent and Purchaser shall cause all tendered Shares to be returned promptly (and to the extent within their power, within five (5) business days) to the registered holders of the Shares represented by the certificate or certificates surrendered to the paying agent designated in the Offer Documents.
(c) Subject to the terms and conditions hereof, the Offer shall expire remain open until midnight, New York City time, on the date (the “Initial Expiration Time”) that is twenty (20) Business Days business days after the commencement date the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Actas so extended, also an "Expiration Date"). Sub may; provided, however, that without the consent of the Board, Purchaser may (and, at the request of the Company, shall): (i) from time to time extend the Offer on one or more occasions for any period (each such individual extension not exceeding to exceed ten (10) Business Days for any extensionbusiness days after the previously scheduled Expiration Date), if on at the scheduled Expiration Date any then-scheduled expiration date of the conditions of the Offer any of the events set forth in Annex A shall not have occurred and be continuingbeen satisfied or waived, until such time as such event conditions are satisfied or events shall no longer exist, and waived to the extent permitted by this Agreement; or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If; provided, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offerhowever, including an extension pursuant to this sentencethat, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to in no event shall the Offer has not been satisfied (or waived be extended beyond March 29, 2002. Parent agrees to cause Purchaser to extend the Offer from time to time in accordance with this Agreement), then, if requested by Section 1.1(c) for the Company, Sub shall, and Parent shall cause Sub to, extend shortest time periods which it reasonably believes are necessary until the consummation of the Offer through such time as if the Company may specify, which time shall be no later than conditions of the Termination Date; provided that the Company Offer shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived so long as this Agreement shall not have been terminated in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodArticle VIII hereof.
(d) As soon Parent shall cause Purchaser to pay to Mellon Investor Services LLC, or such other exchange agent as practicable is reasonably satisfactory to Parent and the Company (the "Paying Agent"), in immediately available United States funds not later than 12:00 noon or such later time as the parties may agree on the date first business day immediately following the Offer is commencedExpiration Date, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect an amount equal to the Offer, which shall include the offer to purchase, form product of the related letter of transmittal and form of notice of guaranteed delivery Per Share Amount and all other ancillary Offer documents issued and outstanding Shares on such date excluding any treasury Shares and any Shares already owned by the Parent or the Purchaser (the "Total Consideration"). The Total Consideration shall be invested by the Paying Agent as directed by Parent in direct obligations of the United States, obligations for which the full faith and credit of the United States is pledged to provide for the payment of principal and interest, commercial paper rated of the highest quality by ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Ratings Group or certificates of deposit, bank repurchase agreements or bankers' acceptances of a commercial bank having at least $1,000,000,000 in assets (collectively, together "Permitted Investments") or in money market funds which are invested in Permitted Investments, and any net earnings with any amendments respect thereto shall be paid to Parent as and supplements theretowhen requested by Parent. The Paying Agent shall, promptly after the “Expiration Date, pay the applicable Per Share Amount to all holders of Shares duly tendered in the Offer. Any of the Total Consideration not so paid pursuant to the Offer Documents”shall be disbursed by the Paying Agent pursuant to the terms of the Plan of Merger (as defined in Section 2.1). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub Total Consideration shall cause the Offer Documents to not be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the used for any 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 purpose except as otherwise required agreed to by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that If (i) this Agreement shall has not have been terminated in accordance with Section SECTION 8.1, Sub (ii) none of the conditions set forth in PARAGRAPHS (A) through (G) of APPENDIX A to this Agreement other than PARAGRAPH (F) (with respect to the representations and warranties as of the Expiration Date) and PARAGRAPH (G) (with respect to obligations to be performed or agreements or covenants to be performed or complied with after the commencement of the Offer) shall have occurred (unless waived by Parent in its sole discretion) and (iii) the Purchaser has received the Financing Letters then, within five Business Days following Purchaser's receipt of the Financing Letters (the "OFFER Deadline"), Purchaser shall commence (within the meaning of Rule 14d-2(a) of 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement)Offer. The obligation of Sub to commence the Offer shall be subject only Subject to the condition that none Minimum Condition and subject to satisfaction or waiver of the events other conditions set forth in clauses (v)(a) or (v)(b) of Annex APPENDIX A hereto to this Agreement, Purchaser shall have occurred consummate the Offer in accordance with its terms and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer promptly after Purchaser is legally permitted to do so under Applicable Law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to Minimum Condition and the next sentence)) of the other conditions set forth in such Annex A. Sub expressly reserves APPENDIX A to this Agreement and shall reflect, as appropriate, the right to waive any conditions to other terms set forth in this Agreement. Unless previously approved by the Offer or change the terms of the Offer except thatCompany in writing, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) which decreases the Offer Price price per Share payable in the Offer, (ii) which changes the form of consideration to be paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex APPENDIX A hereto or which otherwise modifies the conditions set forth in such Annex APPENDIX A or in a manner adverse to the holders of Shares, (v) which amends any other term of the Offer in a manner inconsistent with this Agreement and adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after or (vi) which extends the expiration of the Offer beyond thirty (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (2030) Business Days after following the initial scheduled Expiration Date (the initial scheduled Expiration Date being 20 Business Days following the commencement of the Offer); PROVIDED, HOWEVER, that notwithstanding the foregoing, subject to SECTION 8.1, if the conditions set forth in APPENDIX A are not satisfied or, to the extent permitted by this Agreement, waived, Purchaser will extend the Offer from time to time until the earlier of (determined pursuant i) the consummation of the Offer and (ii) thirty (30) Business Days in the aggregate following the initial Expiration Date of the Offer. In addition, Purchaser may increase the Offer Price, and the Offer may be extended to Rule 14d-1(g)(3) under the Exchange Act). Sub mayextent required by Applicable Law in connection with such increase, in each case without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, waived but the number of Shares validly tendered and but not withdrawn, together with the SharesShares held by Parent and Purchaser, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute is less than ninety percent (90%) of the then outstanding number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full)Shares, then, then upon the applicable expiration time of the OfferExpiration Date, Sub may (and if the Company so requests Sub Purchaser shall, and Parent shall cause Sub Purchaser to) , provide a subsequent offering period (a “for "Subsequent Offering Period”) Periods" as such term is defined in and in accordance with Rule 14d-11 under the Exchange Act andAct, if applicable for an aggregate period not to exceed twenty (20) Business Days (for all such extensions) and Purchaser shall, and Parent shall cause Purchaser to, (i) give the required notice of such extension, and (ii) immediately accept and promptly pay for all Shares tendered prior to the extent permitted under date of such Rule 14d-11, thereafter extend such subsequent offering periodextension.
(db) As soon as practicable on On the date the Offer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer. The Schedule TO will include, which shall include as exhibits, the offer Offer to purchase, Purchase and a form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents summary advertisement.
(collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. c) Parent and Sub shall Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. Parent and SubPurchaser, on the one hand, and the Company, on the other hand, agree to will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Lawrespect. Sub further agrees to Purchaser will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on each of the Offer Documents before they are such Offer Document is filed with the SEC or disseminated to holders of the Shares, and as the case may be. Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to Purchaser will provide the Company and its counsel in writing with any comments or other communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after Parent’s or Sub’s, as the case may be, receipt of such comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and or be continuing existing (and shall not have been waived by Parent or Sub in their sole discretionPurchaser), and Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (the "MINIMUM CONDITION") that a number of Shares that, when added to the Shares already owned by Parent, shall constitute at least a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options, warrants or rights (other than the Company Rights)) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of each of the other conditions set forth in such Annex A. Sub A hereto. Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that no change may be made which decreases the price per Share payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer, (iii) reduces modifies the maximum number of Shares conditions to be purchased in the Offer set forth in Annex A hereto or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to other than those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreementor, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended except as provided in this Agreementthe next sentence, extends the Offer shall expire on Offer. Notwithstanding the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-beyond the scheduled expiration date date, which shall be 20 business days following the commencement of the Offer Offer, if, at the scheduled expiration of the Offer, any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer existconditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at or (iii) extend the Initial Expiration Time Offer for an aggregate period of not more than 5 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or subsequent expiration time related to an extension (ii) of the Offer, including an extension pursuant to this sentence, any if, as of such date, all of the conditions to the obligation of Sub Purchaser's obligations to accept for payment, purchase and to pay for for, the Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawnwithdrawn pursuant to the Offer equals 80 percent or more, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute but less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise 90 percent, of the Top-Up Option outstanding Shares. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in full), thencash, upon the applicable expiration time terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Sub may (and if the Company so requests Sub Purchaser shall, and Parent shall cause Sub Purchaser to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under , promptly after expiration of the Exchange Act andOffer, if applicable accept for payment and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering periodpay for all Shares validly tendered and not withdrawn.
(db) As soon promptly as practicable on the date of commencement of the Offer is commencedOffer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall include the contain or shall incorporate by reference an offer to purchase, form purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and form of notice of guaranteed delivery any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and all such other ancillary Offer documents (collectivelydocuments, together with any all supplements and amendments and supplements thereto, being, collectively, the “"OFFER DOCUMENTS"). Purchaser shall disseminate the Offer Documents”)to Purchase, the related letter of transmittal and other Offer Documents to the extent required by applicable federal securities laws. The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Lawslaws. Parent and SubEach of Parent, on the one hand, Purchaser and the Company, on the other hand, agree Company agrees to correct promptly correct any information provided by it for use in the Offer Documents if it which shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub misleading, and Parent and Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the other Offer Documents before they are filed with the SEC or as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.
(c) Purchaser and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by will file with the Company and its counsel. In addition, Parent and Sub agree to provide Commissioner of Commerce of the Company and its counsel State of Minnesota any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect registration statement relating to the Offer Documents promptly after Parent’s or Sub’s, as required to be filed pursuant to Chapter 80B of the case may be, receipt of such comments or communications. The Company and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselMinnesota Statutes.
Appears in 1 contract
Sources: Merger Agreement (Spine Tech Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from 8.01 and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and or be continuing (and not waived by Parent or Sub existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in their sole discretion), and no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Sub Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (the "MINIMUM CONDITION") that at least the number of Shares that when added to the Shares already owned by Parent and its affiliates shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options, warrants or rights (other than the Company Rights (as defined in Section 3.03))) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the other conditions set forth in such Annex A. Sub A hereto. Purchaser expressly reserves the right to waive any conditions such condition, to increase the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price price per Share payable in the Offer, (ii) and to make any other changes the form of consideration to be paid in the terms and conditions of the Offer; PROVIDED, (iii) HOWEVER, that no change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) which imposes conditions to the Offer in addition to other than those set forth in Annex A hereto or which otherwise modifies hereto. Notwithstanding the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreementforegoing, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub Purchaser may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten beyond the scheduled expiration date (10the initial scheduled expiration date being 20 business days following the commencement of the Offer) Business Days for any extensionif, if on any then-at the scheduled expiration date of the Offer Offer, any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer existconditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. If, at or (iii) extend the Initial Expiration Time 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 subsequent expiration time related to an extension (ii) of the Offer, including an extension pursuant to this sentence, any if as of such date, all of the conditions to the obligation of Sub Purchaser's obligations to accept for payment, purchase and to pay for for, the Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawnwithdrawn pursuant to the Offer equals 80 percent or more, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of Parent, Parent and Sub, each a “Parent Company”), constitute but less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise 90 percent, of the Top-Up Option in full)outstanding Shares on a fully diluted basis; PROVIDED, thenHOWEVER, upon that (A) if, on the applicable initial scheduled expiration time date of the Offer, Sub may the sole condition remaining unsatisfied is (and if 1) the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering failure of the waiting period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act andof 1976, if applicable as amended (the "HSR ACT"), to have expired or been terminated or (2) the failure to consummate the Specialty Merger Transaction and such transaction has not been consummated solely due to the extent permitted failure of the waiting period under such Rule 14d-11the HSR Act to have expired or been terminated, thereafter then, in either case, Purchaser shall extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the related letter of transmittal and form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Offer Documents will comply in all material respects with the applicable provisions of the Exchange Act. Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. 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 or disseminated to holders of Shares, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time until five business days after the expiration or termination of the applicable waiting period under the HSR Act and (B) if the sole condition remaining unsatisfied on the initial scheduled expiration date of the Offer is the condition set forth in (f) of Annex A, the Purchaser shall, so long as the breach can be cured and the Company is vigorously attempting to cure such breach, extend the Offer from time to time until five business days after such breach is cured (provided that Purchaser shall not be required to extend the SEC or its staff with respect Offer beyond 35 days after such initial scheduled expiration date). The Per Share Amount shall, subject to applicable withholding of taxes, be net to the Offer Documents seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall, promptly after Parent’s or Sub’sexpiration of the Offer, as the case may be, receipt of such comments or communications. The Company pay for all Shares validly tendered and its counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counselnot withdrawn.
Appears in 1 contract
Sources: Merger Agreement (Vivra Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, Sub shall commence On the date of commencement of the Offer (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be continuing (and not waived by Parent or Sub in their sole discretion), and the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer.
(b) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) 14d-2 under the Exchange Act). Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for any period not exceeding ten (10) Business Days for any extension, if on any then-scheduled expiration date of the Offer any of the events set forth in Annex A shall have occurred and be continuing, until such time as such event or events shall no longer exist, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the obligation of Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided that the Company shall not be entitled to so request such an extension if any of the conditions set forth in clause (v)(b) or (v)(c) of Annex A have not then been satisfied or waived in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than thirty (30) days, in which case the Company may (if all other conditions set forth in clause (v)(b) or (v)(c) of Annex A are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to thirty (30) days in the aggregate). Nothing in this Section 2.1(b) shall affect or impair any termination rights under ARTICLE VIII.
(c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such wholly owned Subsidiaries of ParentGuarantor, Parent and Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Sub may (and if the Company so requests Sub shall, and Parent shall cause Sub to) provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period.
(d) As soon as practicable on the date the Offer is commenced, Parent and Sub shall file filed with the SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall include the offer “Schedule TO”) that incorporated by reference the Offer to purchase, Purchase and form of the related letter of transmittal and transmittal, form of notice of guaranteed delivery summary advertisement and all such other ancillary customary documents included therein (the Schedule TO, the Offer to Purchase and such other documents (collectively, together with any amendments and supplements theretopursuant to which the Offer is being made, the “Offer Documents”).
(b) Subject to the conditions of this Agreement, as promptly as practicable but in no event later than three Business Days after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, amend the offer to purchase (as so amended and supplemented, the “Offer to Purchase”) and the other Offer Documents, in each case in accordance with the terms of this Agreement, (as so amended and supplemented, the “Amended Offer Documents”), including to reflect the conditions set forth in Annex I (the “Offer Conditions”) and file with the SEC the Amended Offer Documents.
(c) Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each case subject to extending the Offer as required by applicable Law; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer Conditions, (E) amend or modify any of the Offer Conditions or any of the terms of the Offer in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, at its sole discretion prior to the expiration of the Offer, waive or change the Minimum Condition to remove the proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) provides written notification of such determination to the Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to 3 any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer Documents will comply may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in all material respects accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (New York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and
(ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable provisions Law, interpretation or position of the SEC or its staff or the New York Stock Exchange LLC (the “NYSE”) or its staff, in each case applicable to the Offer, provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date.
(f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer; provided, that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the Company if, immediately following the expiration of the Offer, the Short Form Threshold has not been reached and cannot be reached through the immediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, (ii) not acquire any Shares pursuant to the Offer and (iii) cause any depository acting on behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) The Company shall cooperate fully in the preparation of the Amended Offer Documents to be disseminated to holders reflect the terms of Shares as required by applicable federal securities Laws. Parent and Sub, on the one hand, this Agreement 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 applicable Law. Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Amended Offer Documents before they are filed with the SEC. Parent and ▇▇▇▇▇▇ Sub agree that they shall cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC or disseminated to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the Shares, and . Each of Parent and Merger Sub shall give due consideration use its reasonable best efforts to resolve all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Sub agree to provide the Company and its counsel any SEC comments or communications, whether written or oral, that Parent, Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Amended Offer Documents as promptly as reasonably practicable after receipt thereof. Each of Parent’s , ▇▇▇▇▇▇ Sub and the Company agrees to correct any information provided by it for use in the Amended Offer Documents which shall have become false or Sub’s, misleading. Each of Parent and Merger Sub shall as soon as reasonably practicable notify the case may be, Company of the receipt of any comments from the SEC with respect to the Amended Offer Documents and any request by the SEC for any amendment to the Amended Offer Documents or for additional information and shall provide the Company with copies of all such comments and correspondence. Prior to filing or communications. The mailing the Amended Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, each of Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review any responses and to propose comments on such document or response and shall, in good faith, consider and incorporate the reasonable comments or communications, and Parent and Sub shall give due consideration to all reasonable additions, deletions or changes suggested thereto by of the Company and its counselCompany.
Appears in 1 contract
Sources: Merger Agreement