The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, 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 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes. (b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had Subject to the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex I heretothis Agreement, as promptly as practicable but in no event later than August 9, 1999, Sub shall, and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing)Parent shall cause Sub to, Merger Subsidiary shall commence (commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "EXCHANGE ACT"), the Offer. Merger Subsidiary’s Subject to Section 1.1(c), the obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment payment, and pay for for, any Company Shares Offer Securities tendered in pursuant to the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with defined in the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”attached EXHIBIT C) and the other conditions set forth in Annex I. Merger Subsidiary EXHIBIT C (the Minimum Condition and such other conditions being hereinafter collectively referred to as the "OFFER CONDITIONS") (any of which may be waived by Sub in whole or in part at any time and from time to time in its sole discretion, except that, subject to Section 1.1(c), Sub shall not waive the Minimum Condition 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 modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Offer Securities subject to the Offer, (ii) reduce the Applicable Offer Prices, (iii) impose any other conditions to the Offer and other than the Offer Conditions or modify the Offer Conditions (other than to make waive any change Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the terms of or conditions to next sentence, extend the Offer; provided that unless otherwise provided by this Agreement , or previously approved by (v) change the Company form of consideration payable in writingthe Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to extend the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been be satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived, (yii) extend the End Date, and (2) 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, (iii) 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, and (iv) exercise Sub's rights under Section 1.1(c), 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 period required by Applicable Law; scheduled expiration date of the Offer, either of the conditions set forth in paragraphs (e) and (f) of EXHIBIT C or the Minimum Condition shall not have been satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (a), (b), (c), (d), (g), (h) and (i) 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 and provided that Merger Subsidiary Sub shall not be required to extend the Offer beyond the End Date. Following expiration of the OfferSeptember 30, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act1999. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause Sub to, accept for payment payment, and pay for (A) as promptly as practicablefor, 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share Securities validly tendered and not withdrawn pursuant to the Offer or validly tendered 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, and in any Subsequent Offering Period shall be paid net event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the holder thereof in cash, subject to reduction for any applicable withholding TaxesExchange Act.
(b) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "SCHEDULE 14D-1") with respect to the Offer (together with all amendments Offer, which shall contain an offer to purchase and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”"OFFER DOCUMENTS"), and (ii) Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Offer Securities as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable Federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall be or shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary Sub further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company SharesOffer Securities, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselholders of Offer Securities. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments and to cooperate with the Company and its counsel in responding to any such comments.
(c) In the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer, Sub may, in its sole discretion and without the consent of the Company (i) if any Offer Conditions other than the Minimum Condition shall not have been satisfied or other communicationswaived, withdraw the Offer or allow it to expire, subject to the right of the Company to request that Sub extend the Offer by reason of the failure to satisfy either of the conditions set forth in paragraphs (e) and (f) of EXHIBIT C or the Minimum Condition, as set forth in Section 1.1(a), (ii) extend the Offer pursuant to Section 1.1(a), (iii) withdraw the Offer and, at the request of Sub (confirmed in writing), Company, acting through the Company's Board of Directors, shall, in accordance with applicable law, the Company Charter and Company Bylaws, duly call, give notice of, convene and hold a special meeting of its shareholders as promptly as practicable following the giving of such request by Sub for the purpose of considering and taking action upon the Merger and this Agreement, and the parties shall comply with the procedures and obligations set forth in Section 2.8 with respect to a Special Meeting or (iv) amend the Offer to provide that, in the event (A) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (after giving effect to the issuance of any Shares issued pursuant to the Stock Option Agreement but without giving effect to the potential issuance of any Shares issuable upon exercise of the Stock Option Agreement), and (B) the number of Shares tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding Shares, Sub shall waive the Minimum Condition and amend the Offer to reduce the number of Shares subject to the Offer to a reasonable opportunity number of Shares that, when added to participate the Shares then owned by Sub, will equal 49.99% of the Shares then outstanding (the "REVISED MINIMUM NUMBER"), and, if a greater number of Shares is tendered into the Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares, and, in the response case of Parent and Merger Subsidiary to those comments and to provide comments on that response each of clauses (to which reasonable and good faith consideration shall be giveni), including (ii), (iii) and (iv), subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. In no event, however, shall Sub be required to accept for purchase or pay for any Offer Security if less than the Revised Minimum Number of Shares are tendered pursuant to the Offer and not withdrawn at the expiration date. Notwithstanding any other provisions of this Agreement, in the event that Sub purchases a number of Shares equal to the Revised Minimum Number, then without the prior written consent of Sub prior to the termination of this Agreement, Company shall take no action whatsoever to increase the percentage of Shares owned by participating with Sub in excess of the Revised Minimum Number.
(d) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and Merger Subsidiary or their counsel in pay for, any discussions or meetings with Offer Securities that Sub becomes obligated to accept for payment, and pay for, pursuant to the SECOffer.
Appears in 1 contract
Sources: Merger Agreement (Harris Corp /De/)
The Offer. (a) Not later than the first business day after the date of this Agreement, Acquiror, Acquisition Subsidiary and ▇▇▇▇▇ will make a public announcement of the Offer.
(b) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, 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 Acquisition Subsidiary shall commence (commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than ten (10) business days after the initial public announcement of Acquisition Subsidiary’s intention to commence the Offer, which announcement will be made on November 16, 2007. Merger Subsidiary’s The obligation of Acquisition Subsidiary to accept for payment and pay for any Company ▇▇▇▇▇ Shares tendered in pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto, including the condition that there a number of ▇▇▇▇▇ Shares representing that number of ▇▇▇▇▇ Shares which would equal more than fifty percent (50%) of the ▇▇▇▇▇ Shares then issued and outstanding on a fully-diluted basis shall be have been validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration date of the Offer (as it may be extended hereunder) Offer, and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding withdrawn (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger ). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the prior written consent of ▇▇▇▇▇, Acquisition Subsidiary will not (i) decrease the Per Share Amount, (ii) reduce the maximum number of ▇▇▇▇▇ Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I A hereto in any manner materially adverse to the holders of Company ▇▇▇▇▇ Shares, and (iiiv) extend the expiration date of the Offer may not be extended beyond the twenty (20) business days following the commencement thereof, except as set forth expressly provided herein, or (vi) make any other change in this Section 2.01(a)the terms or conditions of the Offer which is adverse to the holders of ▇▇▇▇▇ Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreementthe Offer, unless Acquisition Subsidiary shall, and Acquiror shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all ▇▇▇▇▇ Shares validly tendered and not withdrawn (the “Acceptance Time”).
(c) On the date of commencement of the Offer, Acquiror and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the Schedule TO, the Offer is extended 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 accordance all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to ▇▇▇▇▇’▇ stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; except that in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by ▇▇▇▇▇ for inclusion or Agreement and Plan of Merger incorporation by reference into the Offer Documents. ▇▇▇▇▇, Acquiror and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading in any material respect, and Acquiror and Acquisition Subsidiary shall 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 Law. ▇▇▇▇▇ and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Acquiror and Acquisition Subsidiary shall provide ▇▇▇▇▇ and its counsel with a copy of, and shall consult with ▇▇▇▇▇ regarding any telephonic notification of any oral comments, and shall consult with ▇▇▇▇▇ before responding to any written comments, in each case that Acquiror or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms of this Agreementand conditions hereof, the Offer shall expire at 5:00 p.m.remain open until midnight, New York City timeEastern Time, on the date that is 21 Business Days twenty (for this purpose calculated in accordance with Section 14d-1(g)(320) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of ▇▇▇▇ ▇▇▇, Acquisition Subsidiary may (i) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) ifOffer, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I A shall not have been satisfied or waived, from time to timefor one (1) or more periods of not more than ten (10) business days each, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions and are satisfied or waived, not to exceed thirty (y30) business days in the End Dateaggregate, and (2ii) extend the Offer for any period one (1) or more periods if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, not more than the period or any period periods required by Applicable Law; provided that Merger Subsidiary shall not be required to such rule, regulation, interpretation or position, or (iii) extend the Offer for one (1) or more periods for an aggregate period of not more than twenty (20) business days beyond the End Date. Following latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of ▇▇▇▇▇ Shares which would equal more than ninety percent (90%) of the Offerissued and outstanding ▇▇▇▇▇ Shares on a fully-diluted basis; provided, Merger however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, in its sole discretionwithout the consent of ▇▇▇▇▇, provide a subsequent offering period (“Subsequent Offering Period”) extend the offer in accordance with Rule 14d-11 of the 1934 Exchange Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoIn addition, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that Per Share Amount may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO increased and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to may be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and extended to the extent required by applicable U.S. federal securities lawsLaw in connection with such increase, in each case without the consent of ▇▇▇▇▇. The Company and its counsel shall be given a reasonable opportunity to review and comment If on the Schedule TO and initial scheduled expiration date of the Offer Documents or any extension thereof, any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by ▇▇▇▇▇, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and Acquisition Subsidiary each time before agree that if any such document is filed with of the SECconditions set forth in paragraphs (a) or (b) of Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any expiration date of the Offer, then Acquisition Subsidiary shall, and Parent and Merger Acquiror shall, if requested to do so by ▇▇▇▇▇, cause Acquisition Subsidiary shall give reasonable and good faith consideration to, extend the Offer one time for a period of up to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with ten (A10) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECbusiness days.
Appears in 1 contract
Sources: Merger Agreement (Coley Pharmaceutical Group, Inc.)
The Offer. (a) Provided that nothing shall have occurred that, had Subject to the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terms of the conditions set forth in Annex I heretothis Agreement, as promptly as reasonably practicable and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer. The obligations of Merger Subsidiary’s obligation Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and pay for for, any shares of Company Shares Common Stock tendered in pursuant to the Offer shall be are subject to the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to Exhibit A (the holders “Offer Conditions”). The Offer shall expire at midnight, New York City time, on the 20th Business Day following the commencement of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Subject (determined pursuant to Rule 14d-1(g)(3) under the terms Exchange Act) (such time, the “Initial Expiration Date,” and conditions such time, or such subsequent time to which the expiration of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub expressly reserves the right, in its sole discretion, to waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, however, that, without the prior written consent of the Company, Merger Sub shall expire at 5:00 p.m.not (i) reduce the number of shares of Company Common Stock subject to the Offer, New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3ii) under the ▇▇▇▇ ▇▇▇) after the date that reduce the Offer is commenced. Unless this Agreement Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) impose conditions to the Offer is terminated in accordance with its termsaddition to the conditions set forth in Exhibit A or modify or change any Offer Condition in a manner adverse in any material respect to any holders of Company Common Stock, Merger Subsidiary shall (v) except as otherwise provided in this Section 1.1(a) or Section 1.1(b), extend or otherwise change the Offer from time to time (1) if, at the scheduled or extended expiration date Expiration Date of the Offer, (vi) change the Minimum Condition form of consideration payable in the Offer or (vii) otherwise amend, modify or supplement any of the conditions terms of the Offer in a manner adverse in any material respect to any holders of Company Common Stock. Notwithstanding anything in this Agreement to the Offer set forth contrary, Merger Sub may, in clause (I)(B) its sole discretion, without consent of the first paragraph Company, (A) without limiting Parent’s or Merger Sub’s obligations under the following sentence, extend the Offer on one or more occasions, in consecutive increments of Annex I up to ten Business Days each, with the length of such period to be determined by Parent or Merger Sub (or such longer period as the parties hereto may agree), if on any then-scheduled Expiration Date of the Offer any of the Offer Conditions shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2B) 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. Parent and Merger Sub agree that, to the extent requested in writing by the Company prior to any then-scheduled Expiration Date of the Offer, but subject to Parent’s right to terminate this Agreement pursuant to Section 8.1, Merger Sub shall (and Parent shall cause Merger Sub to) (A) if any of the Offer Conditions set forth in clause (ii) of Exhibit A or any period required in paragraph (a) or (b) of clause (iii) of Exhibit A shall not have been satisfied or, to the extent waivable by Applicable Law; Parent or Merger Sub, waived, and provided that it is reasonably expected that such condition or conditions shall be satisfied prior to the Termination Date, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days each, with the length of such period to be determined by Parent or Merger Subsidiary Sub (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied (but not beyond the Termination Date) and (B) if any of the Minimum Tender Condition or the Offer Conditions set forth in paragraph (d) or (e) of clause (iii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the other Offer Conditions set forth in Exhibit A shall be satisfied on such then-scheduled Expiration Date, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days each, with the length of such period to be determined by Parent or Merger Sub (or such longer period as the parties hereto may agree), for an aggregate period of time of not more than 20 Business Days; provided, however, that Merger Sub shall not be required to extend the Offer beyond the End Termination Date. Following expiration .
(b) Notwithstanding anything to the contrary set forth in Section 1.1(a), if, at any Expiration Date, all of the OfferOffer Conditions (other than the Minimum Tender Condition) shall have been satisfied or have been waived, such that the number of shares of Company Common Stock validly tendered in the Offer and not properly withdrawn is less than that number of shares of Company Common Stock which, when combined with the Top-Up Shares to be issued to Merger Subsidiary Sub upon exercise of the Top-Up Option, would result in Merger Sub owning one more share than 90% of the shares of Company Common Stock outstanding (including any shares of Company Common Stock issued upon exercise of the Top-Up Option) (the “Short-Form Merger Threshold”), then in such case Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 without the consent of the 1934 Act. Subject Company:
(i) extend the Offer for one or more successive periods of up to 10 Business days each, with the foregoinglength of such period to be determined by Parent or Merger Sub (or any longer period as may be requested by Merger Sub and approved in advance by the Company, and upon such approval not to be unreasonably withheld), until the Termination Date in order to permit additional shares of Company Common Stock to be tendered into the Offer such that the Short-Form Merger Threshold may be attained; or
(ii) if the Clearance Date has occurred, terminate the Offer pursuant to Section 1.1(d).
(c) On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (Asubject to any withholding of Tax pursuant to Section 1.1(g)) as promptly as practicable, all shares of Company Shares Common Stock 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the Expiration Date of the Offer. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right, in its sole discretion, to extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Article VIII. If the Offer is terminated or validly withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.1, prior to the acceptance for payment of Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any Subsequent Offering Period shall be paid net depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the holder thereof registered holders thereof. Nothing contained in cash, subject to reduction for this Section 1.1 shall affect any applicable withholding Taxestermination rights in Article VIII of this Agreement. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries (other than in a fiduciary capacity) will be tendered in the Offer.
(bd) As soon If at any then-scheduled Expiration Date (i) any Offer Condition shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived and (ii) the Clearance Date has occurred, then Merger Sub may irrevocably and unconditionally terminate the Offer. If the Offer is terminated pursuant to this Section 1.1(d), the Company shall proceed with and take all actions necessary to hold the Shareholders Meeting as promptly as practicable on and use its reasonable best efforts to solicit proxies from the Company’s shareholders in favor of the Merger for purposes of obtaining the Shareholder Approval in accordance with the terms of this Agreement.
(e) On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO filed under cover of Schedule TO with respect to the Offer Offer, which shall contain an offer to purchase and a related letter of transmittal, summary advertisement and other ancillary documents (together with all amendments such Schedule TO and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, documents included therein pursuant to which the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Sub all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion the Exchange Act to be set forth in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and each of Parent and Merger Subsidiary agree to Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Company SharesCommon Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, and shall use its counsel reasonable best efforts to give the Company the opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall be given provide the Company a reasonable opportunity to review and comment on the Schedule TO and the such Offer Documents each time before any such document is filed with or response (including the SECproposed final version thereof), and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. such comments.
(f) Parent and Merger Subsidiary shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and its counsel with pay for, pursuant to the Offer.
(Ag) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time Sub shall be entitled to time deduct and withhold from the SEC or its staff consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the Schedule TO making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or Offer Documents promptly after receipt of those comments or any other communicationsapplicable Law. To the extent that amounts are so withheld and paid over by Merger Sub to the appropriate Governmental Entity, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration such withheld amounts shall be given), including treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECSub.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had Subject to the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex I heretothis Agreement, as promptly as practicable practicable, Sub shall, and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing)Parent shall cause Sub to, Merger Subsidiary shall commence (commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer. Merger Subsidiary’s The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment payment, and pay for for, any Company Shares tendered in pursuant to the Offer shall be subject only to the condition conditions set forth in the attached Exhibit B (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, except that there Sub shall be validly tendered not waive the Minimum Condition (as defined in accordance with Exhibit B) without the consent of the Company) and subject to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.
1. Sub expressly reserves the right to modify the terms of the Offer, immediately prior except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the scheduled expiration of Offer, (ii) reduce the Offer Price, (as it may be extended hereunderiii) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the impose any other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and other than the Offer Conditions or modify the Offer Conditions (other than to make waive any change Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the terms next sentence, extend the Offer or (v) change the form of or conditions to consideration payable in the Offer; provided that unless otherwise provided by this Agreement or previously approved by . Notwithstanding the Company in writingforegoing, Sub may, without the consent of the Company, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to extend the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been be satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived, (yii) extend the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the End Date. Following latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer, Merger Subsidiary maythis sentence, in its sole discretioneach case subject to the right of Parent, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of Sub or the 1934 ActCompany to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause Sub to, accept for payment payment, and pay for (A) as promptly as practicablefor, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly and pay for, pursuant to the Offer as soon as practicable after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable event in respect of each Company Share validly tendered and not withdrawn compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under 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 TaxesExchange Act.
(b) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO (the "Schedule TO") with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that which shall include contain as exhibits an exhibit or incorporated incorporate by reference thereto, the Offer an offer to Purchase purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of advertisement (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), and (ii) Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselstockholders of the Company. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable cooperate with the Company and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their its counsel in responding to any discussions such comments.
(c) Parent shall provide or meetings with cause to be provided to Sub on a timely basis the SECfunds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer this Agreement has not been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII, as promptly as practicable and in any event within ten days after the date hereof of this Agreement, but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. ; provided, however, that Merger Subsidiary’s obligation Sub shall not be required to accept for payment and pay for any Company Shares tendered in 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 condition that there shall be validly tendered conditions set forth in accordance with this Agreement, including the terms prior satisfaction of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunderdefined in Annex I) and not withdrawn, a number the satisfaction or waiver by Merger Sub of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I (collectively, the “Offer Conditions”), Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment, and promptly thereafter pay for, all Common Shares validly tendered and not validly 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. Merger Sub expressly reserves the right to (i) increase the Common Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition, and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by Agreement, without the prior written consent of the Company (which the Company may withhold in writingits sole discretion), Merger Sub shall not (A) decrease the Common Offer Price, (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant payable in the Offer, (C) decrease the maximum number of Common Shares subject to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes ; (D) impose conditions to the Offer in addition to those set forth in Annex Ithe Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or amends (G) extend or otherwise change the conditions set forth Expiration Date in Annex I a manner 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 any manner materially adverse to the holders of Company Shares, and (iii) the its sole discretion). The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms and conditions of this AgreementExpiration Date, unless the Offer 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 expire at 5:00 p.m., midnight (New York City time, ) at the end of the day on the date that is 21 twenty (20) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that on which the Offer is commenced. Unless this Agreement or first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer is terminated has been extended beyond the Initial Expiration Date pursuant to and in accordance with its termsthis 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 Subsidiary Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (1i) ifif on the applicable Expiration Date, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions 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 set forth in clause for successive periods of not more than ten (I)(B10) of Business Days each (as determined by Merger Sub), or such other period as may be agreed by Parent and the first paragraph of Annex I shall not have been satisfied or waivedCompany, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions Offer Conditions; and (yii) Merger Sub shall extend the End Date, and (2) Offer for any the minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Merger Sub to, and without the staff thereof applicable to Company’s prior written consent (which the Offer or any period required by Applicable Law; provided that Company may withhold in its sole discretion) Merger Subsidiary Sub shall not be required to permitted to, extend the Offer beyond the End Date. Following expiration Date or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the Offer, Parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Merger Subsidiary may, 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 withhold in its sole discretion).
(f) The Common Offer Price shall be adjusted proportionately to reflect the effect 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 a subsequent offering period to the holders of Common Shares the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(“Subsequent Offering Period”g) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms hereof. If this Agreement is terminated in accordance with the terms hereof, then Merger Sub shall (and subject to the conditions Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company not acquire any Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration and shall cause any depository acting on behalf of the OfferMerger Sub to return, and (B) in accordance with applicable Law, all Company tendered Common Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of and any other ancillary Offer documents and instruments pursuant to which the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”)shall be made, and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Common Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Sub agree that they shall cause the Schedule TO and all information concerning exhibits, amendments or supplements thereto (collectively, the Company that may be required “Offer Documents”) filed by applicable securities laws or reasonably requested by either Parent or Merger Subsidiary for inclusion Sub with the SEC to comply, in all material respects, with the Schedule TO or the Offer DocumentsExchange Act and other applicable Law. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and 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 Subsidiary agree Sub further shall use their best efforts to take all steps necessary to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Common Shares, in each case as and to the extent required by applicable U.S. 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 Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Sub shall respond promptly to those any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(i) Parent shall cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any Common Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to provide comments perform, on that response (to which reasonable and good faith consideration shall be given)a timely basis, including by participating with Parent and all of Merger Subsidiary or their counsel in any discussions or meetings with the SECSub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ceres, Inc.)
The Offer. (a) Provided that nothing Upon the terms and subject to the conditions of this Agreement (including Article VII), as promptly as reasonably practicable following the date hereof, but in any event no later than the tenth (10th) Business Day after the date of this Agreement, Merger Sub shall, and Parent shall have occurred thatcause Merger Sub to, had commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Common Stock validly tendered pursuant to the Offer been commenced, would give rise are subject only to a right the satisfaction or waiver (to terminate the Offer pursuant to any extent permitted under this Agreement) of the conditions set forth in Annex I hereto, (as promptly as practicable and in any event within ten days after the date hereof (or such later date as the parties they may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered amended in accordance with this Agreement, the “Offer Conditions”).
(b) To the extent permitted by Law, Parent and Merger Sub reserve the right, at any time, to waive, in whole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Price or to modify the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and in each case only in a manner not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance inconsistent with the terms of this Agreement; provided, however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) reduce the maximum number of shares of Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (v) modify or amend any existing Offer Condition in a manner that is adverse to the holders of Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger or impair the ability of Parent or Merger Sub to consummate the Offer, (vi) except as otherwise required or expressly permitted by Section 1.1(d) extend or otherwise change the Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock or in any manner that delays or unreasonably interferes with, hinders or impairs the consummation of the Offer. Subject to Section 1.1(g), the Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(c) The Offer shall initially expire at 5:00 p.m., New York City time, on the date that is 21 twenty-one (21) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement of the Offer is commenced. Unless this Agreement or (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer is terminated has been extended pursuant to and in accordance with its termsSection 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Merger Subsidiary shall Sub may or shall, as applicable, extend the Offer from time to time as follows:
(1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2i) for any the period as required by any applicable Law, including any rule, regulation, interpretation or position of the SEC or SEC, the staff thereof applicable or the Applicable Exchange;
(ii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any Legal Action in accordance with Section 8.15 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the Governmental Authority presiding over such action, as the case may be, but, in each case of clauses (A) and (B), not past the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a));
(iii) subject to Section 7.7(a), if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or any more occasions in consecutive periods of five (5) Business Days each (with each such period required to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Applicable LawParent and the Company) in order to permit the satisfaction of such Offer Conditions; provided provided, however, that Merger Subsidiary Sub shall not be required to extend the Offer to a date later than the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a)) unless Parent or Merger Sub is not then permitted to terminate this Agreement pursuant to Section 7.2(a), in which case Merger Sub shall be required to extend the Offer beyond the End Termination Date. Following expiration ; or
(iv) if, at the then-scheduled Expiration Time, (A) the full amount of the OfferDebt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing and (B) Parent and Merger Sub acknowledge and agree in writing that, if all Offer Conditions had been satisfied at the then scheduled Expiration Time, the Company would have been entitled to terminate this Agreement pursuant to Section 7.4(e) and receive the Parent Termination Fee, Merger Subsidiary may, Sub shall have the right in its sole discretiondiscretion to extend the Offer on up to three occasions in consecutive increments of five (5) Business Days each (with each such period to end at 5:00 p.m., provide New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Merger Sub shall not be permitted to extend the Offer to a subsequent offering period date later than the Termination Date (“Subsequent Offering Period”) in accordance with Rule 14d-11 for the avoidance of doubt, as the 1934 ActTermination Date may be extended pursuant to Section 7.2(a)). Subject to the foregoingMerger Sub shall not, and upon Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 1.1(d).
(e) On the terms and subject to the conditions of this Agreement, including satisfaction or waiver of all of the OfferOffer Conditions, (i) prior to 9:00 a.m., New York City time, on the Business Day (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Time, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment and pay (the time of acceptance for (Apayment, the “Offer Acceptance Time”) as promptly as practicable, all Company Shares shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer; provided, promptly after that with respect to shares of Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be under no obligation to make any payment for such shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. Parent shall provide or cause to be provided to Merger Sub, at the final expiration Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(Bf) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company Share validly agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be 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 TaxesOffer.
(bg) As soon Unless this Agreement is terminated in accordance with Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is terminated in accordance with Article VII, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares to the tendering stockholders in accordance with applicable Law.
(h) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as practicable on contemplated by this Agreement prior to such action.
(i) On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that ), which shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer an offer to Purchase purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of other appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to the holders of Company Sharesthe Common Stock as and to the extent required by United States federal securities laws. The Company shall promptly furnish or otherwise make available to Parent and Merger Subsidiary in writing or Parent’s legal counsel upon request all information concerning the Company and its Subsidiaries that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and each of Parent and Merger Subsidiary agree to Sub shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Company Sharesthe Common Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary Sub shall give reasonable include in such document (and good faith consideration to any amendments thereto) all comments made proposed by the Company and its counsel and acceptable to Parent and Merger Sub and their counsel, in each case acting reasonably. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Parent or Merger Subsidiary Sub 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 receipt of those comments or other communications, communications and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary Sub to those comments and to provide comments on that response (which response shall include all comments proposed by the Company and its counsel and acceptable to which reasonable Parent and good faith consideration shall be givenMerger Sub and their counsel, in each case acting reasonably), including by participating offering the Company an opportunity to participate with Parent and Parent, Merger Subsidiary Sub or their counsel in any material discussions or meetings with the SECSEC or other Governmental Authorities to the extent such participation is not prohibited by the SEC or other Governmental Authorities. In the event that Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond as promptly as practicable to such comments.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
The Offer. (a) Provided that nothing (i) none of the events or circumstances set forth in clauses (i) through (vi) of Annex A hereto shall have occurred thatand be existing (and shall not have been waived by Parent) and (ii) the Company shall have complied with its obligations under Section 1.2 hereof, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, 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 Parent shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer. Merger Subsidiary’s Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten (10) business days after the date hereof.
(b) The obligation of Parent to accept for payment exchange, and pay for any Company to exchange the Offer Consideration for, Shares tendered in pursuant to the Offer shall be subject only (i) to the satisfaction of the condition that (the “Minimum Condition”) that, at the expiration of the Offer, there shall be validly tendered in accordance with the terms of the OfferOffer (other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not withdrawn that number of Shares which represents more than 50% of (A) Shares then outstanding, immediately prior plus (B) shares of Company Common Stock which the Company may be required to issue pursuant to Company Stock Options (as defined below) outstanding on the scheduled expiration date hereof with an exercise or conversion price on the date hereof of less than $4.37 and which do not terminate upon consummation of the Offer under Company Plans or otherwise, to the extent such Company Stock Options would be vested or exercisable as of the date which is ninety (90) days after the scheduled Expiration Date (as it may be extended hereunderdefined below) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionFully-Diluted Shares”) and (ii) to the satisfaction (or, except to the extent limited below, waiver by Parent) of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Parent expressly reserves the right to waive any of such conditions (other than the Minimum Condition and the conditions set forth in (1) clauses (a), (b), (c) and (d) of the second paragraph of Annex A hereto, (2) clause (i)(A) of Annex A hereto or (3) clause (ii) of Annex A hereto (solely to the extent such clause relates to clause (i)(A)), to increase the consideration per Share payable in the Offer and to make any change other changes in the terms of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made without the prior written consent of the Company which decreases the Exchange Ratio for the Offer from that set forth herein, changes the form of consideration to be paid pursuant to in the Offer, decreases reduces the Offer Price or the maximum number of Company Shares sought to be acquired in the Offer or Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I A hereto, waives the Minimum Condition, modifies or amends any of the conditions set forth in Annex A hereto (although such conditions may be waived as provided herein), makes other changes in the terms of the Offer that are in any manner materially adverse to the holders of Company SharesShares or, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a)provided below, extends the expiration date of the Offer. Subject to Notwithstanding the terms and conditions of this Agreementforegoing, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days Parent may (for this purpose calculated in accordance with Section 14d-1(g)(3A) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time beyond the initial scheduled expiration date, which shall be 20 business days following the date of commencement of the Offer (1) the “Initial Expiration Date” or, as extended pursuant hereto, the “Expiration Date”), or any subsequent scheduled expiration date, if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to Parent’s obligation to accept for exchange, and to exchange the Offer set forth in clause (I)(B) of the first paragraph of Annex I Consideration for, Shares tendered shall not have been be satisfied or or, to the extent permitted by this Agreement, waived, from time subject, however, to timethe parties’ respective rights to terminate this Agreement pursuant to Section 7.1, until (B) extend the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1 and (C) extend the Offer beyond as permitted by the End Datelast sentence of Section 5.4(d). Following expiration Each extension of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period Offer pursuant to clause (“Subsequent Offering Period”A) in accordance with Rule 14d-11 of the 1934 Act. Subject preceding sentence shall not exceed the lesser of ten business days (or such longer period as the Company and Parent may agree in writing in any particular instance) or such fewer number of days that Parent reasonably believes are necessary to the foregoing, and upon the terms and subject to cause the conditions of the OfferOffer set forth in Annex A hereto to be satisfied. In addition, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicableif, at the Expiration Date, all Company of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Parent) but the number of Shares validly tendered and not withdrawn pursuant to the OfferOffer constitutes less than 90% of the Shares then outstanding, promptly without the consent of the Company, Parent shall have the right (subject to applicable law) to provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 business days after Parent’s acceptance for exchange of the final expiration of Shares then tendered and not withdrawn pursuant to the Offer, in which event Parent shall (1) give the required notice of Table of Contents such subsequent offering period and (B2) immediately accept for exchange, and promptly exchange the Offer Consideration for, all Company Shares validly tendered and not withdrawn as of such Expiration Date. Subject to the provisions of Section 7.1, if the Minimum Condition has been satisfied, but the other conditions set forth in Annex A are not satisfied or, to the extent permitted hereby, waived by Parent and Acquisition as of the date the Offer would otherwise have expired, then, except to the extent that such conditions are incapable of being satisfied, at the request of the Company, Parent will extend the Offer for a period not to exceed ten (10) business days; provided, that Parent will continue to extend the Offer beyond such ten (10) business day extension period solely to the extent that, at the expiration of such extension period, all conditions set forth in Annex A, other than one or more of the conditions contained in clauses (b) or (c) of the second paragraph of Annex A, have been satisfied or, to the extent permitted hereby, waived by Parent and Acquisition, and such conditions contained in clauses (b) and (c) of the second paragraph of Annex A remain capable of being satisfied; provided further that, in no event shall the foregoing require the Parent to extend the Offer beyond the Final Date (as hereinafter defined).
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of the Expiration Date, Parent shall accept for exchange, and exchange the Offer Consideration (subject to any Subsequent Offering Periodrequired withholding of taxes) for, promptly after such Company all 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 promptly after it is permitted to the holder thereof in cash, subject to reduction for any do so under applicable withholding Taxeslaw.
(bd) No fractions of a share 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) shall, upon surrender of his or her Certificate or Certificates (as defined below), be entitled to receive an amount of cash (without interest) determined by multiplying (i) the closing price of a share of Parent Common Stock on the New York Stock Exchange (the “NYSE”) (as reported in the New York City edition of the Wall Street Journal or, if not reported thereby, another nationally recognized source) on the first date on which Parent accepts for payment all Shares validly tendered and not withdrawn pursuant to the Offer by (ii) the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(e) The Company agrees that no Shares held by the Company will be tendered to Parent pursuant to the Offer.
(f) As soon promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include 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 or incorporated by reference thereto, the Offer “S-4”). The S-4 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 forms form of the related letter of transmittal and summary advertisementall other ancillary Offer documents (collectively with the Prospectus, if any, in respect of the Offer (collectively, and together with any amendments or all amendments, supplements theretoand exhibits thereto and to the Prospectus, the “Offer Documents”), and (ii) . Parent shall cause the Offer Documents to be disseminated to the holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case Shares as and to the extent required by applicable U.S. federal securities laws. The Company shall provide Parent with such information with respect to the Company and its directors, officers, advisors and affiliates as shall be required to be included in the Offer Documents and the S-4. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to holders of Shares. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration agrees to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Parent or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.Documents
Appears in 1 contract
Sources: Merger Agreement (K2 Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretohereto (the “Offer Conditions”), as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of Offer Conditions. The date on which Merger Sub commences the Offer (is referred to as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionOffer Commencement Date”.
(b) and the other conditions set forth in Annex I. Merger Subsidiary Sub expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or
(vi) otherwise amend, modify or imposes conditions to supplement any of the Offer Conditions or other terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially that broadens such conditions or is otherwise adverse to the holders of Company the Shares, and .
(iiic) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the The Offer shall expire at 5:00 p.m., 11:59 p.m. (New York City time, ) on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII hereof, as promptly as practicable and in any event within ten days after the date hereof (or such but in no event later than the seventh (7th) Business Day after the date as the parties may mutually agree in writinghereof), Merger Subsidiary Sub shall commence (within the meaning of Rule 14d-2 14d−2 under the ▇▇▇▇ ▇▇▇Exchange Act), and Parent shall cause Merger Sub to commence, the Offer to purchase all of the issued and outstanding Shares at a price per Share in cash equal to $17.75 (such amount to be paid for each Share, as it may be amended from time to time in accordance with the terms hereof, the "Offer Price") net to the seller, without interest and less any taxes required to be withheld as described in Section 3.04. The Company agrees that no Shares owned by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. .
(b) The obligations of Merger Subsidiary’s obligation Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Company Shares validly tendered in and not validly withdrawn pursuant to the Offer on or prior to the Expiration Date (the "Tendered Shares") shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offerminimum condition set forth in clause (i) of Annex III hereto (such condition, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and (ii) the satisfaction or waiver by Parent or Merger Sub of the other conditions set forth in Annex I. III hereto (such conditions, together with the Minimum Condition, the "Offer Conditions") and the terms and conditions hereof. The Offer Conditions are for the sole benefit of Parent and Merger Subsidiary Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserves reserve the right to increase the Offer Price or to waive any or to modify the terms or conditions of the conditions to Offer, except that, without the Offer and to prior written consent of the Company, neither Parent nor Merger Sub shall make any change in to the terms of or conditions to of the Offer; provided Offer that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) reduces the Minimum Condition may not be waivedOffer Price, (ii) no change may be made that changes the form of consideration payable in the Offer, (iii) reduces the number of Shares sought to be paid pursuant purchased by Merger Sub in the Offer, (iv) waive or amend the Minimum Condition, (v) add to the Offer Conditions or impose any other conditions to the Offer, decreases (vi) extend the expiration of the Offer Price except as required or the number permitted in Section 1.01 of Company Shares sought in this Agreement, or (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer or imposes conditions to the Offer in addition to those set forth in Annex Ithis Agreement, or amends the conditions set forth in Annex I each case in any a manner materially adverse to the holders of Company the Shares, . Parent and (iii) Merger Sub shall not abandon or terminate the Offer may not be extended prior to any expiration date without the prior written consent of the Company except as set forth in the event that this Section 2.01(a). Agreement is validly terminated pursuant to Article VIII.
(c) Subject to the terms and conditions of this AgreementAgreement and the Offer, unless the initial expiration date for the Offer shall be midnight, New York City time, on the date that is twenty (20) Business Days from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended in accordance with the terms of this Agreement, the Offer "Expiration Date"). Merger Sub shall, and Parent shall expire at 5:00 p.m.cause it to, New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or the Nasdaq that is applicable to the Offer. Merger Sub may without the consent of the Company (in each case unless this Agreement has been terminated pursuant to Article VIII), (i) extend the Offer for one or more consecutive increments of not more than ten (10) Business Days each, if at the then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of such period required to be determined by Applicable Law; provided that Parent and Merger Subsidiary Sub) and/or (ii) make available a "subsequent offering period" in accordance with Rule 14d-11 under the Exchange Act. If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer on one or more occasions at the request of the Company for successive periods of not more than twenty (20) Business Days (the length of such period to be required determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) September 30, 2013. Nothing in this Section 1.01(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond September 30, 2013, or (ii) be deemed to impair, limit or otherwise restrict in any manner the End Dateright of Parent or the Company to terminate this Agreement pursuant to Article VIII.
(d) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Following expiration Merger Sub shall, and Parent shall cause Merger Sub to, on the terms set forth in this Agreement and subject only to the prior satisfaction or waiver of the OfferOffer Conditions (provided, Merger Subsidiary mayhowever, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 that the Minimum Condition may not be waived without the written consent of the 1934 Act. Subject to the foregoingCompany), and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and pay for (Aall Tendered Shares as soon as practicable after the Expiration Date. If Merger Sub makes available a "subsequent offering period" in accordance with Section 1.01(c) as promptly as practicablehereof, Merger Sub shall, and Parent shall cause Merger Sub to accept for payment and pay for all Company Shares that are validly tendered and not withdrawn pursuant to during such "subsequent offering period" promptly (within the Offer, promptly meaning of Rule 14d-11 under the Exchange Act) after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesduring such "subsequent offering period."
(be) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that which shall include as exhibits or incorporated by reference thereto, contain the Offer to Purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of advertisement (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto and including the exhibits thereto, the “"Offer Documents”"), and (ii) cause the Offer Documents to be disseminated to holders the shareholders of the Company Sharesas and to the extent required by United States federal securities Laws and the rules and regulations of the SEC promulgated thereunder (the "Federal Securities Laws"). The Company shall promptly furnish to Parent and Merger Subsidiary Sub shall cause the Offer Documents to comply in writing all information concerning material respects with the Federal Securities Laws. Parent and Merger Sub shall deliver copies of the proposed forms of the Offer Documents (including any amendments or supplements thereto) to the Company that may be required within a reasonable time prior to the dissemination or filing thereof for review and comment by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion the Company and its counsel, and shall consider in good faith any comments of the Schedule TO or the Offer DocumentsCompany. Each of Parent, Merger Subsidiary Sub and the Company agrees shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by the Federal Securities Laws. Parent and Merger Subsidiary agree to take all steps necessary to Sub shall amend or supplement the Offer Documents and cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company the Federal Securities Laws and its counsel shall be given a reasonable opportunity subject to review the terms and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselconditions of this Agreement. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (A) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications, and (B) shall give the Company a reasonable opportunity under the circumstances to participate review and comment on any proposed written or oral responses to such comments. The Company hereby consents to the inclusion in the response Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn, in each case as permitted by this Agreement.
(f) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Subsidiary Sub to those comments perform, on a timely basis, all of Merger Sub's obligations under this Agreement with respect to consummation of the Offer and to provide comments on that response (to which reasonable the Merger and good faith payment or issuance of consideration shall be given), including contemplated by participating with Parent and Merger Subsidiary or their counsel this Agreement in any discussions or meetings with the SECrespect thereof.
Appears in 1 contract
The Offer. (a) Provided The Merger Agreement provides that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, 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 Offeror will commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writingthat, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Merger Agreement, including the satisfaction or waiver of all of the Offer Conditions described in Section 13—"Conditions of the Offer" (including, Merger Subsidiary shall if the Offer is extended or amended, the terms and conditions of any extension or amendment), the Offeror will, and Parent will cause the Offeror to, at or promptly following the Expiration Date, irrevocably accept for payment and payment, and, at or promptly following acceptance for payment, pay for (A) as promptly as practicable, all Company Shares validly tendered and not validly withdrawn pursuant to the Offer. Pursuant to the terms of the Merger Agreement, promptly after unless extended or otherwise agreed between Parent and Smart & Final, the final Offer would expire on the date that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer. On May 3, 2019, Parent and Smart & Final agreed to commence the offer on May 14, 2019 and set the initial expiration of the OfferOffer to June 17, and 2019, 24 business days (Bcalculated in accordance with Rule 14d-1(g)(3) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to under the Offer or validly tendered in any Subsequent Offering Period shall be paid net to Exchange Act) following the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer. The Offeror expressly reserves the right (but is not obligated), Parent in whole or in part, to increase the Offer Price, to waive any Offer Condition or to make any other changes in the terms and Merger Subsidiary shall (i) file conditions of the Offer not inconsistent with the SEC a Tender terms of the Merger Agreement (other than as described below). However, pursuant to the Merger Agreement, the Offeror has agreed that it will not, without the prior written consent of Smart & Final, (a) decrease the Offer Statement on Schedule TO with respect Price (other than in the manner required by the Merger Agreement), (b) change the form of consideration payable in the Offer, (c) decrease the number of Shares subject to the Offer, (d) impose conditions to the Offer in addition to the Offer Conditions, (together with all amendments and supplements thereto and including exhibits theretoe) amend, modify or waive the Minimum Condition, the “Schedule TO”) that shall include as exhibits or incorporated by reference theretoTermination Condition, the Regulatory Condition (to the extent such amendment, modification or waiver would reasonably be expected to adversely affect Smart & Final 's stockholders, directors or officers or require rescission of the transactions contemplated by the Merger Agreement under applicable Antitrust Laws) or the Restraint Condition (to the extent such order or injunction applies against Smart & Final or their respective directors or officers), (f) terminate the Offer or accelerate, extend or otherwise change the Expiration Date, except as permitted by the Merger Agreement, as described in Section 1—"Terms of the Offer" of this Offer to Purchase and forms Purchase, (g) provide for any "subsequent offering period" (or any extension of letter such "subsequent offering period") within the meaning of transmittal and summary advertisement, if any, in respect Rule 14d-11 under the Exchange Act or (h) otherwise modify or amend any of the other terms or conditions of the Offer (collectivelyin manner that adversely affects, together with or reasonably could be expected to adversely affect, any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company holder Shares. The Company shall promptly furnish Offer may not be terminated prior to Parent its scheduled Expiration Date, unless the Merger Agreement is terminated in accordance with its terms. Subject to the terms and conditions of the Merger Subsidiary Agreement, unless the Merger Agreement is terminated in writing all information concerning accordance with its terms, (a) the Company that may be Offeror is required to extend the offer for the minimum period required by applicable securities laws law, interpretation or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each position of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff or the NYSE or its staff; (b) the Offeror is required to extend the Offer on one or more occasions in consecutive increments of up to ten business days each (or such other duration as Parent and Smart & Final may agree) if at the then-scheduled Expiration Date, any of the Offer Conditions has not been satisfied or waived, except that, if the sole remaining unsatisfied Offer Condition is the Minimum Condition, the Offeror will not be required to extend the Offer for more than two occasions of ten business days each (or such other duration as Parent and Smart & Final may agree); and (c) the Offeror may in its sole discretion extend the Offer for successive periods of up to five business days each (or such other duration as Parent and Smart & Final may agree) if, on any date as of which the Offer is scheduled to expire, (i) all of the Offer Conditions have been satisfied or waived (other than the conditions that are to be satisfied at the Offer Acceptance Time), (ii) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing (other than as a result of breach by Parent or the Offeror of certain of their representations, warranties and covenants contained in the Merger Agreement) and (iii) Parent and the Offeror irrevocably acknowledge and agree in writing that (i) Smart & Final may terminate the Merger Agreement and receive the Parent Termination Fee (as defined in Section 1—"Terms of the Offer") pursuant to and in accordance with the Merger Agreement and (ii) the Covenants Condition (other than Fraud or Willful Breach in respect thereof following the date of delivery of the Merger Agreement), the Marketing Period Condition and some of the Representations Conditions (as defined in Section 13—"Conditions of the Offer") will be deemed to have been irrevocably satisfied or waived after the initial extension of the Offer for with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response obligations of Parent and the Offeror to pay the Parent Termination Fee and consummate the Offer. The Offeror is not, however, required or permitted (without the consent of Smart & Final) to extend the Offer or the Expiration Date beyond the Extension Deadline. Subject to the terms and conditions of the Merger Subsidiary Agreement and the satisfaction or waiver of the Offer Conditions, the Offeror will, and Parent will cause the Offeror to, at or promptly following the Expiration Date, irrevocably accept for payment, and, at or promptly following acceptance for payment, to those comments pay for all Shares validly tendered and not validly withdrawn pursuant to provide comments on the Offer. Subject to its rights and obligations under the Merger Agreement to extend the Offer, the Offeror will not be required to accept for payment or pay for any tendered Shares in the event that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary any Offer Condition has not been satisfied or their counsel in any discussions or meetings with waived at the SECscheduled Expiration Date of the Offer.
Appears in 1 contract
The Offer. 2.1 The Offer ---------
(a) Provided that nothing UPR shall have occurred thatcause UPRI to mail and UPRI shall mail before 11:59 p.m. (Calgary time) on February 2, had 1998, an offer to purchase all of the outstanding Norcen Shares for a price of $19.80 in cash for each Norcen Share, which offer shall be made in accordance with Securities Laws and be subject only to the conditions set forth in Schedule A hereto (the "Offer", which term shall include any amendments to, or extensions of, such Offer, including, without limitation, increasing the consideration, removing or waiving any condition or extending the date by which Norcen Shares may be tendered). The Offer shall be prepared in both the English and French language and in accordance with Securities Laws. UPR shall provide Norcen with a draft copy of the Offer been commencedDocuments prior to mailing for its review and comment.
(b) The Offer shall expire on the Initial Expiry Time, would give rise to a right to terminate except that the Offer pursuant may be extended, subject to any Section 2.1(c), if the conditions thereto set forth in Schedule A are not satisfied on the date and time at which the Offer expires and if UPRI determines, acting reasonably, that there is a reasonable prospect that the conditions of the Offer may be satisfied prior to the Expiry Time. Subject to the satisfaction or waiver of the conditions set forth in Annex I Schedule A hereto, UPRI shall, as promptly soon as is practicable in the circumstances and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing)time periods required by law, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company all Norcen Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not properly withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer. UPR and UPRI shall use all commercially reasonable efforts to consummate the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 subject to the terms and conditions of this Agreementthereof.
(c) Notwithstanding the foregoing, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or if any of the conditions to the Offer set forth out in clause paragraphs (I)(Bb), (c), (d) and (e) of the first paragraph of Annex I shall Schedule A have not have been satisfied or waivedwaived on the Initial Expiry Time, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required UPRI agrees to extend the Offer beyond for such period of time, not to exceed 60 days following the End Date. Following expiration of the OfferInitial Expiry Time, Merger Subsidiary as is necessary to satisfy or fulfill such conditions, but only if UPRI has made a bona fide determination, acting reasonably, that there is a reasonable prospect that such conditions may be satisfied within such 60 day period.
(d) It is agreed that UPRI may, in its sole discretion, provide a subsequent offering period :
(“Subsequent Offering Period”i) in accordance with Rule 14d-11 waive any term or condition of the 1934 Act. Subject to Offer for its benefit provided that if UPRI takes up and pays for any Norcen Shares it shall acquire not less than the foregoing, and upon the terms and subject to the conditions Minimum Required Shares; and
(ii) amend any term or condition of the Offer, Merger Subsidiary provided that UPRI shall accept not change the number of Norcen Shares for payment which the Offer is made, decrease or change the form of the consideration to be paid for each Norcen Share, amend the Offer or modify the conditions to the Offer in a manner that is, in the opinion of Norcen, acting reasonably, adverse to the holders of Norcen Shares. UPRI agrees to provide Norcen with not less than two days prior written notice of any waiver or amendment of any term or condition of the Offer.
(e) UPRI will instruct the depositary under the Offer to advise Norcen from time to time, not less frequently than every two Business Days until the day immediately prior to the Expiry Time and pay for thereafter on an hourly basis, if requested by Norcen and in such manner as Norcen may reasonably request, as to the number of Norcen Shares that have been tendered (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to withdrawn) under the Offer.
(f) The parties hereto agree that UPR may make the Offer through UPRI but UPR shall be liable to Norcen for the full performance by UPRI under this Agreement.
(g) UPRI's obligation to make the Offer as set forth in Section 2.1(a) is conditional upon the execution and delivery to UPRI, promptly after concurrently with the final expiration execution of this Agreement, of the pre-tender agreement referred to in Section 2.2(b).
(h) Prior to commencement of the Offer and continuing for 20 days thereafter, UPR agrees that it will consider in good faith restructuring the Offer contemplated in this Agreement prior to its commencement to provide for a right on the part of Canadian shareholders of Norcen to either receive cash of $19.80 for each Norcen Share or cash and investment grade notes of UPRI guaranteed by UPR and if UPR agrees to amend the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits Norcen consents thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer necessary amendments to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO this Agreement and the Offer Documents if and will be made to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECeffect thereto.
Appears in 1 contract
Sources: Pre Acquisition Agreement (Union Pacific Resources Group Inc)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 11.01 and (ii) the Company shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretocomplied with its obligations under Section 2.02, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary shall, and Parent shall cause it to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the OfferOffer to purchase for cash all of the outstanding Shares at the Offer Price. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunderdefined in Annex I) and not withdrawnthe satisfaction, a number or waiver by Parent or Merger Subsidiary, of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (together with the Minimum Condition, the “Offer Conditions”). The date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer is referred to as the “Offer Commencement Date”.
(b) Parent and Merger Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer, including raising the Offer Price; provided that that, without the prior written consent of the Company or unless otherwise provided expressly contemplated by this Agreement or previously approved by the Company in writingAgreement, neither Parent nor Merger Subsidiary shall:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend the expiration date of the Offer except as otherwise provided herein; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company the Shares, and .
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 20 Business Days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that Offer Commencement Date (the Offer is commenced. Unless this Agreement or “Initial Expiration Date”) or, if the Offer is terminated Initial Expiration Date has been extended in accordance with its termsthis Agreement, the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) Merger Subsidiary shall, and Parent shall cause it to, extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law; provided that , (ii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (e) through (h) on Annex I have not been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to, upon the written request of the Company no less than one Business Day prior to any then scheduled Expiration Date, extend the Offer, up to an aggregate of 20 Business Days (whether in one or more periods as so requested by the Company), in order to permit the satisfaction of such conditions and (iii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (a) through (d) on Annex I have not be required been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to extend the Offer beyond for one or more periods ending no later than the End Date to permit the satisfaction of such conditions. The Offer may be terminated prior to the then scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with Article 11. Following expiration If this Agreement is validly terminated pursuant to Article 11, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) promptly (and in any event within two Business Days of such termination), irrevocably and unconditionally terminate the Offer. If this Agreement is validly terminated prior to the acceptance for payment of Shares in the Offer, Merger Subsidiary mayshall promptly return, and shall cause any depositary acting on behalf of Merger Subsidiary to return, in its sole discretionaccordance with Applicable Law, all tendered Shares to the registered holders thereof. Notwithstanding the foregoing, Merger Subsidiary shall, if requested by the Company, provide for a subsequent offering period (and one or more extensions thereof) (“Subsequent Offering Period”) of up to 20 Business Days, in accordance with Rule 14d-11 of the 1934 Act, if, at the commencement of the Subsequent Offering Period, (x) the Short Form Threshold has not been reached and (y) the Top-Up Option is not exercisable hereunder in accordance with its terms. Subject to the foregoing, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all Shares as they are validly tendered during such Subsequent Offering Period and in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer Documents will provide for the possibility of a Subsequent Offering Period in a manner consistent with the terms of this Section 2.01(c).
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction of the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, as promptly as practicable after Merger Subsidiary is legally permitted to do so under Applicable Law, 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 Offer (the final expiration of time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment and pay for all Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the Minimum Condition and the satisfaction or waiver of each of the other Offer Conditions (B) all Company Shares validly tendered in and shall not be subject to any Subsequent Offering Period, promptly after such Company Shares are validly tenderedother conditions). The Offer Price payable in respect of each Company Share validly tendered and not properly withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof seller in cash, subject to reduction for without interest, less any applicable withholding Taxesof Taxes required by Applicable Law.
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms Purchase, a form of letter of transmittal transmittal, a form of summary advertisement and summary advertisement, if any, in respect of any schedule or form required to be filed pursuant to the Offer Instructions to Schedule TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company Shares, in each case, as and to the extent required by Applicable Law (including the 1934 Act). The Company Offer shall promptly furnish to be conducted in compliance with Applicable Law (including the 1934 Act).
(f) Parent and Merger Subsidiary shall cause the Offer Documents to (i) comply with the applicable requirements of the 1934 Act and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in writing all information concerning order to make the Company that may be required by applicable securities laws or reasonably requested statements therein, in light of the circumstances under which they were made, not misleading; provided, however, no covenant is made by Parent or Merger Subsidiary with respect to information supplied by the Company for inclusion in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company’s Solicitation/Recommendation Statement on Schedule TO 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) or the Offer Documentsinformation statement containing the information required by Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder (together with any amendments or supplements thereto, the “Information Statement”), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by Applicable Law. Parent and Merger Subsidiary agree to take all steps necessary to shall cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsApplicable Law (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith due consideration to any reasonable comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (Ai) copies of any written comments or other communications, whether written or oraland shall inform them of any oral communications, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith due consideration shall be givengiven to reasonable comments), including by participating with . Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or their counsel its staff with respect to the Offer Documents or the Offer.
(g) Parent shall cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary’s obligations under this Agreement.
(h) Nothing in this Section 2.01 shall affect any discussions or meetings with the SECtermination rights in Section 11.01.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 10.01, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 15 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Purchaser and Parent shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇1934 Act) the Offer. Merger Subsidiary’s obligation Parent and the Company shall coordinate on determining the Offer Commencement Date pursuant to accept for payment the foregoing to be a date such that the Company is in a position to file the Schedule 14D-9 and pay for any the Company Shares tendered in Schedule 13E-3 on the Offer Commencement Date, concurrently with the filing of the Schedule TO and the Parent Schedule 13E-3 by Parent and Purchaser. The Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly I hereto (the “Offer Conditions”). The date on which Purchaser and Parent commences the Offer is referred to as the “Offer Commencement Date”.
(b) Purchaser reserves the right to waive any of the conditions to Offer Conditions (other than the Offer Unaffiliated Tender Condition and the Termination Condition, each of which is nonwaivable) and to make any change in the terms of or conditions to the OfferOffer in its sole discretion; provided that unless otherwise provided by this Agreement or previously approved that, without the prior written consent of the Company as authorized by the Company in writingSpecial Committee, Purchaser shall not:
(i) decrease the Minimum Condition may not be waived, Offer Price;
(ii) no change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iii) decrease the number of Company Shares sought in the Offer;
(iv) extend or otherwise change the expiration date of the Offer or imposes except as otherwise provided herein;
(v) impose conditions to the Offer in addition to those set forth the Offer Conditions;
(vi) provide any “subsequent offering period” (or any extension thereof) in Annex Iaccordance with Rule 14d-11 of the 1934 Act (“Subsequent Offering Period”); or
(vii) otherwise amend, modify or amends supplement any of the conditions set forth Offer Conditions or terms of the Offer in Annex I in any a manner materially adverse to, or that would reasonably be expected to be materially adverse to, the holders Unaffiliated Public Stockholders in their capacities as such. For the avoidance of Company Sharesdoubt, and (iii) in no event will the Offer may not be consummated unless the Unaffiliated Tender Condition and the Termination Condition shall have been satisfied.
(c) Unless extended except as provided in this Agreement, the Offer shall initially expire one minute after 11:59 p.m. Eastern Time on the date that is 20 Business Days (calculated as set forth in this Section 2.01(a). Subject Rule 14d-1(g)(3) under the 1934 Act) (the “Initial Expiration Date,” and such time or such subsequent time to which the terms and conditions expiration of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”) after the Offer Commencement Date. Provided that this Agreement shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated not have been terminated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms10.01, Merger Subsidiary Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, if any of the Offer Conditions is not satisfied or waived (to the extent waivable) on any scheduled Expiration Date of the Offer, until such Offer Condition or Offer Conditions are satisfied or waived (to the earliest to occur of (xextent waivable) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any the minimum period required by any rule, regulation, interpretation Applicable Law or position the rules and regulations of the SEC or as is necessary to resolve any comments issued by the SEC or its staff thereof applicable to the Offer, the Schedule TO, or the Offer Documents, the Parent Schedule 13E-3, the Schedule 14D-9 or any period required by Applicable Lawthe Company Schedule 13E-3; provided that Merger Subsidiary that, in each case, (i) Purchaser shall not be required to extend the Offer (x) beyond the earlier of (1) the End Date and (2) the valid termination of this Agreement (such earlier time of the immediately preceding clauses (1) and (2), the “Extension Deadline”) or (y) on more than one occasion (for such period as requested by the Company, but not more than ten Business Days) if, as of such Expiration Date. Following , (1) there are no unresolved comments from the SEC on any of the Schedule TO, the Offer Documents, the Parent Schedule 13E-3, the Schedule 14D-9 or the Company Schedule 13E-3 and (2) all of the Offer Conditions (other than the Unaffiliated Tender Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, Merger Subsidiary to the extent permissible, waived by Purchaser, provided further that, solely in the case of this clause (y)(2), and subject to this Agreement not having been terminated in accordance with Section 10.01, Purchaser may, in its sole discretion, provide extend the Offer to permit such Offer Conditions to be satisfied, (ii) Purchaser shall not be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company as authorized by the Company Special Committee and (iii) no such individual extension of the Offer shall be for a subsequent offering period of more than ten Business Days (“Subsequent Offering Period”) except for such longer period as the parties hereto may mutually agree). Purchaser shall not terminate the Offer unless this Agreement shall have been validly terminated pursuant to Section 10.01. In the event that this Agreement is validly terminated pursuant to Section 10.01, Purchaser shall, and Parent shall cause it to, promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on behalf of Purchaser to return, in accordance with Applicable Law, all Shares tendered to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause it to, promptly (within the meaning of Rule 14d-11 14e-1(c) of the 1934 Act. Subject to ) (i) after the foregoingExpiration Date, accept for payment (the date and upon the terms and subject to the conditions of time at which Shares are first accepted for payment under the Offer, Merger Subsidiary shall accept for payment the “Acceptance Date”), and (ii) after the Acceptance Date, pay for (A) as promptly as practicablefor, all Company Shares validly tendered and not validly 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on or after the date of commencement Acceptance Date, and prior to consummation of the OfferMerger, Parent shall take all necessary and appropriate action to cause any Shares owned by Parent or any Subsidiary of Parent (other than Purchaser, the Company or any Subsidiary of the Company) to be transferred to (and registered in the name of) Purchaser.
(e) On the Offer Commencement Date, Parent and Merger Subsidiary Purchaser shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, Purchaser’s offer to purchase the Shares pursuant to the Offer to Purchase and forms a form of letter of transmittal transmittal, notice of guaranteed delivery and summary advertisement, if any, in respect of the Offer advertisement (and appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and a Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto and including exhibits thereto, the “Parent Schedule 13E-3”) that will contain or incorporate by reference the Offer Documents and (ii) cause the appropriate Offer Documents and Parent Schedule 13E-3 to be disseminated to holders of Company SharesShares to the extent required by applicable federal securities laws. The Company shall promptly will furnish to Parent and Merger Subsidiary in writing all the information concerning relating to the Company that may be required by applicable securities laws or reasonably requested by the 1934 Act to be set forth in the Offer Documents and the Parent Schedule 13E-3. Parent will furnish to the Company the information relating to Parent or Merger Subsidiary for inclusion Purchaser required by the 1934 Act to be set forth in the Solicitation/Recommendation Statement on Schedule TO 14D-9 (together with any amendments or supplements thereto, the Offer Documents“Schedule 14D-9”) and a Rule 13e-3 Transaction Statement on Schedule 13E-3 to be filed by the Company (together with any amendments, supplements and exhibits thereto, the “Company Schedule 13E-3”). Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and TO, the Offer Documents and the Parent Schedule 13E-3 if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary Purchaser shall use their commercially reasonable efforts to cause the Schedule TO and the Parent Schedule 13E-3 as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and TO, the Offer Documents and the Parent Schedule 13E-3 each time before any such document is filed with the SEC, and Parent and Merger Subsidiary Purchaser shall give reasonable and consider in good faith consideration to any the comments made by the Company and its counsel. Parent and Merger Subsidiary Purchaser shall (i) as promptly as practicable after the receipt of any comments or requests for additional information from the SEC with respect to the Schedule TO, the Offer Documents or the Parent Schedule 13E-3, provide the Company and its counsel with (A) copies of any comments written comments, and advise the Company and its counsel of any material or other communicationssubstantive oral comments, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time including any request from the SEC for amendments or its staff supplements to the Schedule TO, the Offer Documents or the Parent Schedule 13E-3, and shall provide the Company with copies of all material or substantive correspondence between Parent, Purchaser and their Representatives, on the one hand, and the SEC, on the other hand, with respect to the Offer, the Schedule TO or TO, the Offer Documents promptly after receipt of those comments or other communicationsthe Parent Schedule 13E-3, and (Bii) provide the Company a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel Purchaser in any discussions material or meetings substantive meeting or discussion with the SECSEC in respect of the Offer, the Schedule TO, the Offer Documents or Schedule 13E-3.
(f) If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Shares are registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Shares tendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.01(f) under any circumstance.
Appears in 1 contract
The Offer. (ai) Provided that nothing Unless this Agreement shall have occurred thatbeen terminated in accordance with Article VIII, had the Offer been commencedParent will cause Purchaser to, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoand Purchaser will, as promptly as practicable and in any event within ten days after the date hereof of this Agreement (or such but in no event later than the tenth (10th) Business Day following the date as the parties may mutually agree in writingof this Agreement), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the OfferOffer to purchase for cash any (subject to the Minimum Tender Condition) and all Shares at the Offer Price. Merger Subsidiary’s obligation The obligations of Purchaser (and of Parent to cause Purchaser) to accept for payment and to pay for any Company Shares validly tendered in and not properly withdrawn pursuant to the Offer shall will be subject only to the condition that there shall be validly tendered satisfaction or waiver of those conditions set forth in Annex I (the “Offer Conditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire on the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with Section 1.1(a)(ii), the “Expiration Date”). Purchaser expressly reserves the right (but will not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of the Offer, immediately including the Offer Price, except that, without the prior to the scheduled expiration written consent of the Offer Company, Purchaser will not (as it may be extended hereunderA) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to decrease the Offer and to make any Price, or change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of the consideration to be paid payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, decreases (C) amend or waive the Offer Price or the number of Company Shares sought in the Offer or imposes conditions Minimum Tender Condition, (D) add to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in on Annex I, (E) modify the conditions set forth on Annex I in any a manner materially adverse to the holders of Company Shares, and (iiiF) extend the Expiration Date of the Offer may not be extended except as set forth required or permitted by Section 1.1(a)(ii), (G) make any other change in this Section 2.01(a). the terms or conditions of the Offer that is adverse to the holders of Shares or (H) increase the Offer Price by an increment of less than $0.25.
(ii) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time and to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver (to the extent permitted hereunder) by Purchaser of the Offer Conditions as of any scheduled Expiration Date, Purchaser will, and Parent will cause Purchaser to, accept for purchase and pay for any (subject to the Minimum Tender Condition) and all Shares validly tendered (and not properly withdrawn) pursuant to the Offer promptly after such conditions scheduled Expiration Date (the date and time of acceptance for payment, the “Acceptance Time”). Purchaser (A) will extend the Offer for one or more periods of time of up to ten (10) Business Days per extension if at any scheduled Expiration Date any of the Offer Conditions is not satisfied and has not been waived; and (yB) will extend the End Date, and (2) 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 or The NASDAQ Stock Market LLC (“Nasdaq”) applicable to the Offer or any period required by Applicable LawOffer; provided provided, that Merger Subsidiary shall not under no circumstances will Purchaser be required to to, nor may Purchaser without the prior written consent of the Company, extend the Offer beyond the End Outside Date. Following expiration The Company shall register (and shall instruct its transfer agent to register) the transfer of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept Shares accepted for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly by Purchaser effective immediately after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 TaxesAcceptance Time.
(b) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) Purchaser will file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together collectively with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) with respect to the Offer that shall will include as exhibits or incorporated by reference thereto, the Offer offer to Purchase purchase and forms of related letter of transmittal and summary advertisement, if any, in respect of advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, together collectively with any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause will disseminate the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaws. The Company agrees to furnish promptly to Parent and its counsel shall Purchaser all information concerning the Company and required by the securities Laws to be set forth in the Offer Documents. The Company will be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Purchaser agree to (i) promptly provide the Company and its counsel with a copy of any written comments (Aor a description of any oral comments) any comments or other communications, whether written or oral, that received by Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents, (ii) consult with the Company regarding any such comments prior to responding thereto and (iii) provide the Company with copies of any responses to any such comments. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable federal securities Laws. Each of Parent, Purchaser and the Company agrees to promptly after receipt correct any information provided by it for use in the Offer Documents if and to the extent that it has become aware that such information has become false or misleading in any material respect. Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of those comments Shares, in each case as and to the extent required by applicable federal securities Laws.
(c) Parent will 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.
(d) Purchaser will not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to ARTICLE VIII. If this Agreement is terminated pursuant to ARTICLE VIII, Purchaser will, and Parent will cause Purchaser to, promptly (and in any event within twenty-four (24) hours of such termination) terminate the Offer and will not acquire any Shares pursuant thereto. If the Offer is terminated by Purchaser, or this Agreement is terminated pursuant to ARTICLE VIII prior to the acquisition of Shares in the Offer, Purchaser will promptly (and in any event within two (2) Business Days of such termination) return, and will cause any depositary or other communicationsagent acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(e) The (i) Offer Price and (ii) Merger Consideration will be adjusted appropriately to reflect any reclassification, recapitalization, stock split (including a reverse stock split), or combination, exchange or readjustment of shares, or any stock dividend or stock distribution occurring (or for which a record date is established) after the date hereof and prior to (A) the payment by Purchaser for Shares validly tendered and not properly withdrawn in connection with the Offer (with respect to the Offer Price) or (B) a reasonable opportunity the Effective Time (with respect to participate in the response Merger Consideration).
(f) For purposes of Parent this Agreement and Merger Subsidiary the Offer, any Shares subject to those comments notices of guaranteed delivery will be deemed not to be validly tendered into the Offer unless and until the Shares underlying such notices of guaranteed delivery are delivered to provide comments on that response (Purchaser or to which reasonable an agent of Purchaser and good faith consideration shall be given), including received by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECdepositary prior to the expiration of the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 11.01, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (the “Offer Conditions”). The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the OfferOffer (other than the Minimum Condition (as defined in Annex I), which is non-waivable and may not be amended or modified); provided that, without the prior written consent of the Company (provided that unless otherwise provided by this Agreement or previously such consent has been approved by the Company in writingSpecial Committee), Merger Subsidiary shall not:
(i) decrease the Minimum Condition may not be waived, Offer Price;
(ii) no change may be made that changes the form of consideration to be paid pursuant in the Offer;
(iii) decrease the number of Shares subject to the Offer, decreases ;
(iv) extend or otherwise change the Expiration Time of the Offer Price or the number of Company Shares sought in the Offer or imposes except as provided herein;
(v) impose conditions to the Offer other than the Offer Conditions; or
(vi) otherwise amend, modify or supplement any of the terms or conditions of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company Shares, and .
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger Subsidiary shall, and Parent shall cause it to, extend the Offer (i) for one or more consecutive increments of not more than 10 Business Days from time to time (1) if, at the then-scheduled or extended expiration date time of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been satisfied or waived, from time ; provided that Parent shall not be required to time, until extend the earliest Offer pursuant to occur this clause (i) beyond the earlier of (x) the satisfaction or waiver of such conditions and (yA) the End Date, Date and (2B) the date that is 10 Business Days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied immediately prior to the Acceptance Time) have been satisfied and (ii) for any period required by (x) any applicable rule, regulation, interpretation or position of the SEC or the staff thereof applicable to or (y) the Offer rules and regulations of NASDAQ or any period required by Applicable Law; and provided that further that, without the Company’s prior written consent, Parent and Merger Subsidiary shall not be required to extend the Offer beyond the End Datethen-scheduled expiration time if an Adverse Recommendation Change has occurred (except for any extension pursuant to clause (ii)). Following expiration The time when the Offer expires (taking into account any permitted or required extensions in accordance with this Section 2.01(c)) is referred to herein as the “Expiration Time.” Merger Subsidiary shall not, and Parent shall cause it not to, terminate or withdraw the Offer prior to the then-scheduled Expiration Time of the OfferOffer unless this Agreement is validly terminated in accordance with its terms. In the event that this Agreement is terminated, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoingshall, and upon the terms Parent shall cause it to, promptly, irrevocably and subject to the conditions of unconditionally terminate the Offer. In the event that the Offer is terminated, Merger Subsidiary shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on its behalf to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, (1) accept for payment and pay for (A) payment, as promptly as practicablepracticable (and in any event within one Business Day) after the Expiration Time, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after Offer (the final expiration of 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 (B2) all Company Shares validly tendered in any Subsequent Offering Period, promptly after thereafter pay for such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 TaxesShares.
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary shall (i3) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms Purchase, a form of letter of transmittal and a summary advertisement, if any, in respect of the Offer advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii4) cause the Offer Documents to be disseminated to holders of Company SharesShares to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company shall use their reasonable best efforts to ensure that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO TO, and any amendments or supplements thereto, comply in all material respects with the Offer Documentsrules and regulations promulgated by the SEC under the Exchange Act. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or on its behalf for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawslaws or the rules and regulations of NASDAQ. The Company shall furnish to Parent and Merger Subsidiary the information relating to the Company required by the Exchange Act to be set forth in the Schedule TO and the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the any Offer Documents Document each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating using reasonable best efforts to give the Company the opportunity to participate with Parent and Merger Subsidiary or their and its counsel in any substantive discussions or meetings with the SEC. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn in accordance with Section 7.03(b).
Appears in 1 contract
Sources: Merger Agreement (Roche Holding LTD)
The Offer. The Merger Agreement provides that Endo and Purchaser will commence the Offer to purchase any and all of the outstanding Shares. The obligations of Purchaser to, and of Endo to cause Purchaser to, accept for payment and pay for, any Shares tendered pursuant to the Offer are subject only to the conditions described in Section 13—“Conditions of the Offer” (a) Provided that nothing shall have occurred each such condition, an “Offer Condition”). Purchaser expressly reserves the right to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, however, that, had without the prior written consent of Penwest, Purchaser will not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer been commencedPrice or change the form of consideration payable in the Offer, would give rise (iii) change, modify or waive the Minimum Tender Condition, (iv) impose conditions that are different than or in addition to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, 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 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms “Conditions of the Offer, immediately prior to the scheduled expiration of ,” (v) extend the Offer (except as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved permitted by the Company in writingMerger Agreement for periods of five business days on each such occasion, or (ivi) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to otherwise amend the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company SharesShares or that would reasonably be expected to prevent, and (iii) materially delay or impair the Offer may not be extended except as set forth in this Section 2.01(a)ability of Endo or Purchaser to consummate the Offer, the Merger or the other transactions contemplated by the Merger Agreement. Subject to the terms and conditions The initial expiration date of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.12:00 midnight, New York City time, on at the date that is 21 Business Days end of Friday, September 17, 2010. Notwithstanding anything in the Merger Agreement to the contrary, Purchaser (for this purpose calculated i) may, in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termssole discretion, Merger Subsidiary shall without Penwest’s consent, extend the Offer from time to time (1) on one or more occasions for a period of five business days on each such occasion if, at the on any then-scheduled or extended expiration date of the Offer, the Minimum Condition or any of the Offer Conditions is not satisfied or, in Purchaser’s sole discretion, waived, until such time as such condition or conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been are satisfied or waived, from time to time, until (ii) will extend the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC Commission or the staff thereof or the NASDAQ Stock Market applicable to the Offer and (iii) will extend the Offer until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act and any other applicable foreign antitrust, competition or any period required by Applicable Lawsimilar law has expired or terminated; provided provided, however, that Merger Subsidiary shall not in no event will Purchaser be required to extend the Offer beyond October 19, 2010 or at any time Endo or Purchaser is entitled to terminate the End DateMerger Agreement. Following Purchaser must also extend, not more than two times, the period of time during which the Offer remains open for an additional five business days each time, if on a scheduled expiration date of the OfferOffer the Minimum Tender Condition is not satisfied, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 but all of the 1934 Actother Offer Conditions other than the Minimum Tender Condition are satisfied or waived; provided, however, that in no event will Purchaser be required to extend the Offer beyond October 19, 2010 or at any time Endo or Purchaser is entitled to terminate the Merger Agreement. Subject to the foregoing, and upon On the terms and subject to the conditions of the OfferOffer and the Merger Agreement, Merger Subsidiary shall Purchaser will accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not validly withdrawn prior to the expiration date of the Offer (as it may be extended and re-extended) pursuant to the Offer as soon as practicable after such expiration date. Purchaser expressly reserves the right to, in its sole discretion, following acceptance for payment of Shares upon expiration of the Offer (the “Offer Closing”), extend the Offer for a “subsequent offering period” of not less than 3 business days nor more than 20 business days in accordance with Rule 14d-11 under the Exchange Act. Shares underlying options may be tendered pursuant to the Offer. If you wish to tender Shares subject to options, promptly after you must deliver to the final Depositary prior to the expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after Offer such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn documents as may be required pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement terms of the Offer, Parent and Merger Subsidiary shall options to effect the exercise thereof (iother than payment of the exercise price of such options) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments a Conditional Election Form and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be other documents required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Conditional Election Form and the Company agrees promptly to correct any information provided by it Instructions for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders Conditional Exercise for Tender of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.Option Shares and
Appears in 1 contract
Sources: Offer to Purchase (Endo Pharmaceuticals Holdings Inc)
The Offer. (a) 2.1.1 Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a the right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoI, as promptly as practicable and in any event within ten days after the date hereof (or such and in any event no later than seven Business Days after the date as the parties may mutually agree in writinghereof), Merger Subsidiary Sub shall, and Purchaser shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares shares of Enpath Common Stock that, together with the Company Shares shares of Enpath Common Stock then directly or indirectly owned by ParentPurchaser, represents at least a majority of all Company Shares Enpath Common Stock then outstanding on a fully-diluted basis (the “Minimum Condition”) and to the other conditions set forth in Annex I. I, Merger Subsidiary Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company Enpath in writing, ,
(iA) the Minimum Condition may not be waived, ,
(iiB) 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 shares of Enpath Common Stock sought in the Offer or Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the conditions set forth in Annex I Offer in any manner materially adverse to the holders of Company SharesEnpath Common Stock, and and
(iiiC) the Offer may not be extended except as set forth in this Section 2.01(a)2.1.
1. Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary Sub shall extend the Offer from time for successive periods of up to time twenty (120) Business Days each:
(i) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of of:
(xa) the satisfaction or waiver of such conditions and conditions,
(yb) the reasonable determination by Purchaser that any such condition to the Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Purchaser or Merger Sub, and
(c) the End Date, and and
(2ii) 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 set forth by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Dateany applicable Legal Requirement. Following expiration of the Offer, Merger Subsidiary Sub may, in its sole discretion, provide a one or more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Exchange Act, if, as of the commencement of each such period, there shall not have been validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that number of shares of Enpath Common Stock necessary to permit the Merger to be effected without a meeting of shareholders of Enpath, in accordance with Section 302A.621 of the Minnesota Business Corporation Act (“MBCA”). Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Purchaser shall cause Merger Sub to, accept for payment and pay for (A) for, as promptly as practicable, all Company Shares shares of Enpath Common Stock that were either:
(A) validly tendered and not withdrawn pursuant to the Offer, promptly Offer after the final expiration of the Offer, and or
(B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share share of Enpath Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) 2.1.2 As soon as practicable on the date of the commencement of the Offer, Parent Purchaser and Merger Subsidiary shall Sub shall:
(iA) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary of advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and .
(iiB) cause the Offer Documents to be disseminated to the holders of Company SharesEnpath Common Stock. The Company Enpath shall promptly furnish to Parent Purchaser and Merger Subsidiary Sub in writing all information concerning the Company Enpath that may be required by applicable securities laws or reasonably requested by Parent Purchaser or Merger Subsidiary Sub for inclusion in the Schedule TO or the Offer Documents.
(C) Parent and Merger shall timely file with the Commissioner of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Enpath Common Stock 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 Minnesota Statutes. Each of ParentPurchaser, Merger Subsidiary Sub and the Company Enpath agrees promptly to correct any information provided by it for use in the Schedule TO and or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent Purchaser and Merger Subsidiary Sub agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company SharesEnpath Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company Enpath and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent Purchaser and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company Enpath and its counsel. Parent Purchaser and Merger Subsidiary Sub shall promptly provide the Company Enpath and its counsel with with:
(Ai) any comments or other communications, whether written or oral, that Parent, Purchaser or Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and and
(Bii) a reasonable opportunity to participate in the response of Parent Purchaser and Merger Subsidiary Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent Purchaser and Merger Subsidiary Sub or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Not later than the first business day after the date of this Agreement, ACQUIROR, Acquisition Subsidiary and OPTA will make a public announcement of the Offer.
(b) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred thator be existing, had Acquisition Subsidiary shall commence, and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer been commencedas promptly as practicable after the date hereof, would give rise but in no event later than five (5) business days after the initial public announcement of Acquisition Subsidiary’s intention to a right commence the Offer. The obligation of Acquisition Subsidiary to terminate accept for payment and pay for OPTA Shares tendered pursuant to the Offer pursuant shall be subject only to any the satisfaction of the conditions set forth in Annex I A hereto (unless the failure of any such condition was caused by any breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for OPTA Shares tendered pursuant to the Offer provided that such failure has been waived by OPTA), including the condition that a number of OPTA Shares representing that number of OPTA Shares which would equal more than fifty percent (50%) of the OPTA Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the “Minimum Condition”). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the prior written consent of OPTA, Acquisition Subsidiary will not (i) decrease the Per Share Amount, (ii) reduce the maximum number of OPTA Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer set forth in Annex A hereto, (v) extend the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in the terms or conditions of the Offer which is adverse to the holders of OPTA Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all OPTA Shares validly tendered and not withdrawn.
(c) On the date of commencement of the Offer, ACQUIROR and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and Table of Contents 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 the forms of related letters of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to OPTA’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. ACQUIROR and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading, and ACQUIROR and Acquisition Subsidiary shall 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 OPTA Shares, in each case as and to the extent required by applicable law. OPTA and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and its counsel with a copy of any written comments or telephonic notification of any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents or this Agreement. In the event within ten that ACQUIROR or Acquisition Subsidiary 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 take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, Eastern Time, on the date that is twenty (20) business days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence Offer is commenced (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act); provided, however, that without the prior written consent of OPTA, Acquisition Subsidiary may (i) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of extend the Offer, immediately prior to if at the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I A shall not have been satisfied or waived, from time for one (1) or more periods (none of which shall exceed ten (10) business days) not to timeexceed thirty (30) business days in the aggregate or, if earlier, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions and are satisfied or waived, (yii) extend the End DateOffer for one (1) or more periods, and not to exceed thirty (230) for any period business days in the aggregate, if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to (iii) extend the Offer on one (1) occasion for an aggregate period of not more than ten (10) business days beyond the End Datelatest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of OPTA Shares which would equal more than ninety percent (90%) of the issued and outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a) or (d) in Annex A. If on the initial scheduled expiration date of the Offer or Table of Contents any extension thereof, any applicable waiting period under any applicable foreign laws regulating competition, antitrust, investment or exchange controls has not expired or terminated prior to the expiration of the Offer (the “Foreign Antitrust Condition”), Acquisition Subsidiary shall, if requested to do so by OPTA, extend the expiration date of the Offer until a date not later than January 15, 2003 and ACQUIROR shall use its best efforts to obtain all permits, authorizations, consents, expiration or termination of waiting periods, and approvals as may be required by any Governmental Entity. Following In addition, ACQUIROR and Acquisition Subsidiary each agree that if all of the conditions set forth in Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any expiration date of the Offer, Merger then Acquisition Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoingshall, and upon the terms and subject to the conditions of the OfferACQUIROR shall cause Acquisition Subsidiary to, 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to extend the Offer for one (1) or validly tendered in any Subsequent Offering Period more periods of not less than ten (10) business days if requested to do so by OPTA, provided that OPTA shall be paid net entitled to the holder thereof in cash, subject to reduction for any applicable withholding Taxesmake only three (3) such requests.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretohereto (the “Offer Conditions”), as promptly as practicable and in any event within ten days after the date hereof (or such hereof, and in no event later than five Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the OfferOffer on behalf of Parent. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of Offer Conditions. The date on which Merger Sub commences the Offer (is referred to as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionOffer Commencement Date”.
(a) and the other conditions set forth in Annex I. Merger Subsidiary Sub expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, Merger Sub shall not:
(i) decrease the Minimum Condition may not be waived, Offer Price other than in the manner required by Section 3.11;
(ii) no change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iii) decrease the number of Company Shares sought to be purchased in the Offer;
(iv) extend or otherwise change the expiration date of the Offer except as otherwise provided herein;
(v) increase or imposes conditions decrease the percentage of Shares required to meet the 80% Minimum Condition above or below 80%; or
(vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially that broadens such conditions or is otherwise adverse to the holders of Company the Shares. For the avoidance of doubt, the parties acknowledge and agree that, upon the mutual agreement of Merger Sub and the Company, Merger Sub may amend or waive the 80% Minimum Condition (iiiexcept for any amendment having the effect of increasing the percentage of Shares required to meet the 80% Minimum Condition above 80%) and close the Offer may not be extended except as set forth in this Section 2.01(a). Subject even if insufficient Shares have been tendered to meet the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the 80% Minimum Condition.
(b) The Offer shall expire at 5:00 p.m., 11:59 p.m. (New York City time, ) on the date that is 21 20 Business Days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section (in which event the term “Expiration Date” shall mean the earliest time and date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Sharesextended, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth validly terminated in Annex I heretoaccordance with Article IX, as promptly as practicable reasonably practicable, and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing)10 Business Days, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer. The obligations of Merger Subsidiary’s obligation Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Company Shares tendered in pursuant to the Offer shall be subject to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunderdefined in Annex I hereto) and not withdrawn, a number (ii) the satisfaction or waiver of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority each of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (together with the Minimum Condition, the “Offer Conditions”), upon the terms and conditions hereof. Merger Subsidiary Sub expressly reserves the right right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition or (C) modify any of the conditions to the Offer and to make any change in the other terms of or conditions to of the Offer; provided that , except that, unless otherwise provided by this Agreement or previously approved by Agreement, without the Company in writingconsent of the Company, Merger Sub shall not (1) reduce the Offer Price, (i2) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant payable in the Offer (other than by adding consideration), (3) reduce the maximum number of Shares subject to the Offer, decreases (4) waive or change the Offer Price or the number of Company Shares sought in the Offer or imposes conditions Minimum Condition, (5) add any condition to the Offer in addition to those Conditions, (6) extend the expiration of the Offer, except as required or permitted by Section 1.1(b) or (7) modify any Offer Condition or any term of the Offer set forth in Annex I, or amends the conditions set forth this Agreement in Annex I in any a manner materially adverse to the holders of Company Shares, and .
(iiib) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 midnight (i.e., one minute after 11:59 p.m., New York City time, ) on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (such date and time, the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis 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 so extended, the “Expiration Date”). Notwithstanding the foregoing, subject to the parties’ respective rights to validly terminate this Agreement pursuant to Article IX, Merger Subsidiary shall Sub may or shall, as applicable, extend the Offer from time to time time:
(1i) if, if at the any scheduled or extended expiration date of the OfferExpiration Date, the Minimum Condition has not been satisfied or any of the conditions to the other Offer set forth in clause (I)(B) of the first paragraph of Annex I shall Conditions have not have been satisfied or waivedwaived by Parent or Merger Sub, from time then Merger Sub shall extend the Offer for one or more consecutive periods of up to 5 Business Days (each such period to end at 5:00 p.m. (New York City time, ) on the last Business Day of such period) per extension (or such other duration as may be agreed to by Parent and the Company) until the earliest earlier to occur of (xA) the satisfaction date such Offer Conditions are satisfied or waiver waived and (B) the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 9.1(c)); provided, however, that if the sole then-unsatisfied Offer Condition is the Minimum Condition, Merger Sub may (but shall not be required to) extend the Offer on up to two occasions in consecutive periods of five Business Days each (each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such conditions period) (or such other duration as may be agreed to by Parent and the Company);
(y) the End Date, and (2ii) for any period required by applicable Law, including any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof or the rules of the New York Stock Exchange (“NYSE”) applicable to the Offer or Offer; or
(iii) if, at any period required by Applicable Law; provided that Merger Subsidiary shall scheduled Expiration Date, (A) the full amount of the Debt Financing has not been funded and will not be required available to extend be funded at the Offer beyond Closing and the End Date. Following expiration Closing (other than as a result of a breach by Parent or Merger Sub of any of their representations, warranties or covenants set forth in Section 5.7 and Section 7.12 of this Agreement) and (B) Parent and Merger Sub acknowledge and agree in writing that (1) the Company may terminate this Agreement pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 9.1(d)(iii)(2) and receive the Parent Termination Fee pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 9.2(b)(iv)(A) and (2) solely with respect to both (x) any payment of the Parent Termination Fee in accordance with subclause (1) of this Section 1.1(b)(iii) and (y) Merger Sub’s obligation, and Parent’s obligation to cause Merger Sub, to consummate the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject including to the foregoing, accept and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and thereafter 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer and in accordance with this Section 1.1, all Offer Conditions set forth (I) in paragraphs (c)(ii)(C) and (c)(iv) of Annex I and (II) other than in respect of any willful or material breach (including any willful and material breach) following the date of delivery of such notice, in paragraph (c)(iii) of Annex I will be deemed to have been satisfied or waived at the Expiration Date after giving effect to any extension pursuant to this clause (iii) and, for the avoidance of doubt, only at such time, Merger Sub shall have the right in its sole discretion to extend the Offer on up to four occasions in consecutive periods of five Business Days each (each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Merger Sub shall not be permitted to extend the Offer to a date later than the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 9.1(c)). The Offer may be terminated prior to the Expiration Date (as it may be extended in accordance with this Section 1.1(b)), but only if this Agreement is validly terminated in accordance with Article IX. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is validly terminated in accordance with Article IX, prior to the acceptance for payment of Shares tendered in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any Subsequent Offering Period shall be paid net depositary acting on behalf of Merger Sub to return, all tendered Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bc) As Subject to the terms and conditions of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable on after the date of commencement of Acceptance Time, but in any event not later than three Business Days after the OfferAcceptance Time (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act); provided, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO that with respect to the Offer (together with Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be under no obligation to make any payment for such Shares unless and until such Shares are delivered in settlement or satisfaction of such guarantee. Parent shall cause to be provided to Merger Sub all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with funds necessary to purchase any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents Shares that Merger Sub becomes obligated to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and purchase pursuant to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and Offer.
(d) Subject to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by obligations of the Company and its counsel. Parent subsidiaries pursuant to Section 6.1, the Offer Price shall be adjusted appropriately and Merger Subsidiary shall provide proportionately to reflect the Company and its counsel with effect of any stock split, reverse stock split, stock dividend (A) including any comments dividend or other communicationsdistribution of securities convertible into Shares), whether written reorganization, recapitalization, reclassification, combination or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff other exchange of shares with respect to Shares occurring on or after the Schedule TO date of this Agreement and at or Offer Documents promptly after receipt of those comments or other communicationsprior to the Acceptance Time, and (B) a reasonable opportunity such adjustment to participate in the response Offer Price shall provide to the holders of Parent and Merger Subsidiary Shares the same economic effect as contemplated by this Agreement prior to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECsuch action.
Appears in 1 contract
Sources: Merger Agreement (Diamond Resorts International, Inc.)
The Offer. (a) Provided that nothing Subject to the conditions of this Agreement, as promptly as practicable (but in no event later than ten (10) Business Days after the date of this Agreement), Merger Sub shall, and Parent shall have occurred thatcause Merger Sub to, had commence the Offer been commencedunder the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligations of Merger Sub to, would give rise and of Parent to a right cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to terminate the Offer pursuant are subject only to any of the conditions set forth in Annex I heretoExhibit B (the “Offer Conditions”). The initial expiration date of the Offer (the “Initial Expiration Date”) shall be midnight (New York City time) on the twentieth (20th) Business Day following commencement of the Offer (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as promptly as practicable amended (together with the rules and in any event within ten days after regulations promulgated thereunder, the date hereof (or such later date as the parties may mutually agree in writing“Exchange Act”), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer). Merger Subsidiary’s obligation Sub expressly reserves the right to accept for payment and pay for waive, in whole or in part, any Company Shares tendered in condition to the Offer shall be subject to the condition that there shall be validly tendered in accordance with or modify the terms of the Offer, immediately prior to except that, without the scheduled expiration written consent of the Offer Company, Merger Sub shall not (as it may be extended hereunderA) and not withdrawn, a reduce the number of Company Shares that, together with shares of the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant Common Stock subject to the Offer, decreases (B) reduce the Offer Price except in accordance with Section 1.1(e), (C) waive or amend the number of Company Shares sought in the Offer or imposes conditions Minimum Tender Condition, add to the Offer in addition to those set forth in Annex I, Conditions or amends the conditions set forth in Annex I modify any Offer Condition in any manner materially adverse to the holders of the Company SharesCommon Stock, and (iiiD) the Offer may not be extended except as set forth otherwise provided in this Section 2.01(a1.1(a). Subject , extend the Offer, (E) change the form of consideration payable in the Offer or (F) otherwise amend the Offer in any manner adverse to the terms and conditions holders of this Agreement, unless the Offer is extended in accordance with Company Common Stock. Notwithstanding the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at for the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any minimum 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; provided that Merger Subsidiary shall Offer, but not be required to extend beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer beyond any Offer Condition is not satisfied (or to the End Date. Following expiration of the Offerextent permitted hereby, waived) and until such time as such conditions are satisfied, Merger Subsidiary Sub may, in its sole discretion, provide a without the consent of the Company, or if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more occasions, in consecutive increments between two (2) and ten (10) Business Days each, with the length of such period to be determined by Merger Sub or, in the event such extension is requested by the Company, such period between two (2) and (10) Business Days as the Company requests (or in any event such other period as the parties hereto may agree) (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the earliest to occur of (i) the valid termination of this Agreement in accordance with Article 9 and (ii) the Outside Date. Merger Sub may, in its sole discretion, make available one (1) or more “subsequent offering period (“Subsequent Offering Periodperiods”) , in accordance with Rule 14d-11 under the Exchange Act, of not less than three (3) Business Days and not more than twenty (20) Business Days in the 1934 Actaggregate for all subsequent offering periods. Subject to the foregoing, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn subject to any withholding of Tax pursuant to the Offer, promptly after the final expiration Section 4.2(f)) all shares of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net that Merger Sub becomes obligated to purchase pursuant to the holder thereof in cash, subject to reduction for any applicable withholding TaxesOffer promptly after the expiration of the Offer.
(b) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments Offer, which shall contain an offer to purchase and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of advertisement (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelyshall be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), . Parent and (ii) Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of the Company SharesCommon Stock as and to the extent required by the Exchange Act. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Sub all information concerning the Company that may be required by applicable securities laws the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent or and Merger Subsidiary Sub for inclusion in the Schedule TO or the Offer Documentstherein. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. respect and to correct any material omissions therein; and each of Parent and Merger Subsidiary agree to Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected amended or supplemented, to be disseminated to holders of Company Sharesthe Company’s shareholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Parent and Merger Sub shall provide the Company and its counsel copies of any written comments, and shall be given inform the Company and its counsel of any oral comments or discussions, that Parent, Merger Sub or their counsel may receive from or engage with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO and the such Offer Documents each time before any such document is filed with or response (including the SECproposed final version thereof), and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and or its counsel. .
(c) Subject to the terms and the conditions of the Offer and this Agreement, and the satisfaction (or, if permitted to be waived by Parent and Merger, the waiver by Parent and Merger Subsidiary Sub) of the Offer Conditions, (i) as soon as practicable after the applicable Expiration Date, Merger Sub shall provide accept for payment and promptly (and in any event within three (3) business days (as determined using Rule 14d-1(g)(3) under the Exchange Act) after such acceptance) pay for, and Parent shall cause Merger Sub to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer (the time of such acceptance for payment, the “Acceptance Time,” and the time of such payment, the “Offer Closing”), or (ii) in the case of any shares of Company Common Stock tendered during any subsequent offering period, Merger Sub shall immediately accept for payment and promptly (and in any event within three (3) business days (as determined using Rule 14d-1(g)(3) under the Exchange Act)) pay for, and Parent shall cause Merger Sub to accept for payment and pay for, all such shares of Company Common Stock validly tendered during such period.
(i) If at any then-scheduled expiration of the Offer, any Offer Condition shall not have been satisfied or waived and no further extension or re-extensions of the Offer are required pursuant to Section 1.1(a), Merger Sub may irrevocably and unconditionally terminate the Offer upon delivery of a written notice to the Company, and (ii) if this Agreement is terminated pursuant to Article 9, then Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within two (2) Business Days of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Article 9, (i) Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of the Company Common Stock to the registered holders thereof and (ii) any “standstill” or similar covenant in the Confidentiality Agreement previously waived by the Company shall, without any further action by the Company, be automatically reinstated and be deemed to be in full force and effect.
(e) If, during the period between the date of this Agreement and the Effective Time, the outstanding shares of Company Common Stock shall be changed into a different number of shares or a different class (including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or stock dividend thereon with a record date during such period but excluding any change that results from any exercise of Company Stock Options that are outstanding as of the date hereof), the Per Share Merger Consideration, Offer Price and any other amounts payable pursuant to this Agreement shall be appropriately adjusted.
(f) For purposes of this Agreement and the Offer (including the exercise of the Top-Up Option), unless otherwise mutually agreed to by the Company and its counsel with (A) Merger Sub, any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time shares of Company Common Stock subject to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt notices of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration guaranteed delivery shall be given), including by participating with Parent deemed not to be validly tendered into the Offer unless and until the shares underlying such notices of guaranteed delivery are delivered to or on behalf of Merger Subsidiary or their counsel in any discussions or meetings with the SECSub.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section and no event shall have occurred thatand no circumstance shall exist which would result in the occurrence of any of the events set forth in Annex A hereto (the "COMMENCEMENT CONDITIONS"), had Purchaser shall, in accordance with the applicable provisions of the Dutch Merger Code and the rules and regulations of the Amsterdam Stock Exchange (the "ASE") and otherwise in accordance with applicable Law (as defined in Section 7.11(d)), commence the Offer been commencednot later than the fifth Business Day (as defined in Section 7.11(a)) (the "COMMENCEMENT DATE") after the Registration Statement (as defined in Section ) is declared effective pursuant to the Securities Act of 1933, would give rise as amended (the "SECURITIES ACT"), by the Securities and Exchange Commission (the "SEC"). The obligation of Purchaser to a right accept for payment Company Shares properly tendered pursuant to terminate the Offer pursuant (the "TENDERED SHARES") shall be subject only to any the satisfaction or waiver by Purchaser of the conditions set forth in Annex I heretoB hereto (the "OFFER CONDITIONS"). Purchaser expressly reserves the right, as promptly as practicable and in any event within ten days after the date hereof its sole discretion (or such later date as the parties may mutually agree in writingsubject to Section 6.2(b)), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment waive any Commencement Condition or Offer Condition and pay for make any Company Shares tendered other changes in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration and conditions of the Offer (or to extend the Offer beyond a scheduled Expiration Date (as it may defined in Section 1.3) if any Offer Conditions shall not be extended hereunder) and not withdrawnsatisfied); provided, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company and Stockholder in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that which increases the Minimum Condition (as defined in Annex B hereto), decreases the price per share payable in the Offer, changes the form of consideration to be paid pursuant to the Offer, decreases payable in the Offer Price or (other than by adding consideration), reduces the maximum number of Company Shares sought to be purchased in the Offer, or amends the terms of the Offer or Offer Conditions or imposes conditions or terms to the Offer in addition to those set forth in Annex Iherein which, or amends the conditions set forth in Annex I in any manner materially such case, are adverse to the holders of the Company Shares, and (iii) Shares or make the likelihood of the Offer may not be extended except as set forth succeeding more remote in this Section 2.01(a)any material respect. Subject Purchaser agrees that, in the event that it is unable to consummate the Offer on the initial scheduled Expiration Date due to the terms and conditions failure of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time Conditions to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been be satisfied or waived, it shall, unless this Agreement is terminated pursuant to Section , extend the Offer and set a subsequent scheduled Expiration Date, and shall continue to so extend the Offer and set subsequent scheduled Expiration Dates, until the Termination Date (as defined in Section 7.11(j)). Purchaser agrees that (i) the initial scheduled Expiration Date of the Offer shall be not later than the earlier of (x) 60 Business Days following the Commencement Date and (y) the date on which Purchaser reasonably believes that all Offer Conditions (other than the Minimum Condition) will be satisfied or waived (which date may not be fewer than 20 Business Days following the Commencement Date) and (ii) each subsequent scheduled Expiration Date shall be not later than the earlier of (x) 20 Business Days following the previous scheduled Expiration Date, (y) the date on which Purchaser reasonably believes that all Offer Conditions (other than the Minimum Condition) will be satisfied or waived and (z) the Termination Date. To the maximum extent permitted by the Laws of The Netherlands ("DUTCH LAW"), including the Dutch Merger Code, and by the rules and regulations of the ASE, it is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to 10 3 any such condition (except for any action or inaction by Purchaser constituting a breach of this Agreement) and, except as provided in Section 6.2(b), may be waived by Purchaser, in whole or in part, at any time and from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion. Purchaser may, provide at any time, transfer or assign to one or more Subsidiaries of Purchaser (organized or incorporated under the Laws of Canada, the United States, The Netherlands or any other jurisdiction, provided, that such other jurisdiction would not impose a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 withholding tax on the payment of the 1934 Act. Subject Offer Consideration (as defined in Section 1.2)) the right to the foregoing, and upon the terms and subject to the conditions purchase all or any portion of the OfferTendered Shares, Merger Subsidiary but any such transfer or assignment 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 relieve Purchaser of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to its obligations under the Offer or validly tendered in any Subsequent Offering Period shall be paid net prejudice the rights of tendering shareholders to receive payment for the holder thereof in cash, subject to reduction Tendered Shares accepted for any applicable withholding Taxespayment.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Offer Agreement (Seagram Co LTD)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII, as promptly as practicable and in any event within ten days after the date hereof of this Agreement but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved the Company agrees that no Shares owned by the Company in writing, (i) or any of the Minimum Condition may not Subsidiaries of the Company be waived, (ii) no change may be made that changes the form of consideration to be paid tendered pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company Shares, and .
(iiib) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), after the Expiration Date (as defined herein) Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer is in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right, at any time, to in its sole discretion waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, however, without the prior written consent of the Company, Purchaser shall not (A) subject to adjustment pursuant to Section 1.1(f), 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) amend or modify any of the Offer Conditions in a manner that adversely affects holders of Shares generally, (E) change the Minimum Condition, (F) impose conditions to the Offer in addition to the Offer Conditions, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, or (H) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 twenty (20) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, being referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows: (i) if, on the scheduled Expiration Date, the Minimum Condition has not been satisfied 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 from time for one or more periods of not more than five (5) Business Days each (or of not more than ten (10) Business Days each if the only Offer Condition(s) not yet satisfied is the Offer Condition relating either to time the absence of Restraints or to the receipt of required regulatory approvals) (1the length of such periods to be determined by Parent) if, at or such other number of Business Days as the scheduled or extended expiration date parties may agree (subject to the right of the Offer, Purchaser to waive any Offer Condition (other than the Minimum Condition or any Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with Article VIII of the conditions to this Agreement); and (ii) Purchaser shall extend the Offer set forth in clause (I)(B) of for the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any minimum period required by any ruleapplicable Law or the applicable rules, regulationregulations, interpretation interpretations or position positions of the SEC or its staff or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary NYSE. Purchaser shall not be required to extend the Offer beyond the End Date. Following expiration Date and shall not in any event extend the Offer beyond the End Date without the Company’s prior written consent.
(f) The Offer Price shall be equitably adjusted, without duplication, to reflect the effect of any change in the fully diluted number of shares of capital stock of the Company as a result of any reclassification, stock split (including a reverse stock split) or combination, merger, issuer tender, exchange or readjustment of shares or any stock dividend or stock distribution occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be deemed to permit or authorize the Company to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(g) In the event that this Agreement is terminated pursuant to the terms hereof, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty-four (24) hours of such termination) irrevocably and unconditionally terminate the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 not acquire any 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 Company 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 and cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon as practicable on On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisementother appropriate ancillary offer documents, if any, in respect of and shall cause the Offer Schedule TO (collectively, together with any all exhibits, amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by the Exchange Act and other applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer DocumentsLaws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as soon as reasonably practicable and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Company and its stockholders that may be required in connection with any action contemplated by this Section 1.1(h), including communicating the Offer to the record and beneficial holders of the Shares. Parent and Purchaser shall give (x) the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, SEC and Parent and Merger Subsidiary shall give (y) reasonable and good faith consideration to any comments made the reasonable additions, deletions or changes suggested by the Company and its counselcounsel thereto. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments. Each of Parent and Purchaser shall respond promptly to any comments of the SEC or other communications, its staff with respect to the Offer Documents or the Offer. Parent and Purchaser agree to give (x) the Company and its counsel reasonable opportunity to review any proposed written or oral responses to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (By) a reasonable and good faith consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings substantive telephonic communications with the SECstaff of the SEC related thereto. Notwithstanding the foregoing, the obligations of the Company in the immediately preceding three sentences shall not apply if the Company Board (or a committee thereof) effects a Company Adverse Recommendation Change in accordance with Section 6.3.
(i) 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.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Section 8.1, had and provided further that the Offer been commencedCompany is prepared (in accordance with Section 1.2(b)) to file with the SEC, would give rise and to a right disseminate to terminate holders of shares of Company Common Stock, the Offer pursuant to any of Schedule 14D-9 on the conditions set forth in Annex I heretosame date as Merger Sub commences the Offer, as promptly as practicable and in any event within ten days after the date hereof (or such and in any event no later than the tenth Business Day after the date as the parties may mutually agree in writingof this Agreement), Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under of the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer to purchase all of the outstanding Shares at the Offer Price, net to the seller in cash, without interest. The obligation of Merger Subsidiary’s obligation Sub to accept for payment and pay for any Company Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with terms and conditions of this Agreement, including the terms satisfaction of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. A (the “Offer Conditions”), and no other conditions. The Offer Price payable for each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the holder of the Share in cash, without interest, on the terms and conditions set forth in this Agreement and in the Offer. (b) Merger Subsidiary 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 conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that that, unless otherwise provided by this Agreement or previously approved by the Company in writingwriting (which approval may be granted or withheld by the Company in its sole discretion), Merger Sub, and Parent on behalf of Merger Sub, shall not, subject to applicable Law: (i) decrease the Minimum Condition may not be waived, Offer Price; (ii) no change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases ; (iii) decrease the Offer Price or the maximum number of Company Shares sought in the Offer or imposes Offer; (iv) impose conditions to the Offer in addition to those set forth the Offer Conditions; (v) amend or modify any of the Offer Conditions in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company Shares, and ; (iiivi) change or waive the Minimum Tender Condition; (vii) extend or otherwise change the Expiration Date other than as required or permitted by this Agreement; or (viii) otherwise amend or modify any terms of the Offer may not be extended except as set forth in this Section 2.01(a). a manner that adversely affects the holders of Shares.
(c) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 one minute after 11:59 p.m., New York City time, on the date that is 21 20 Business Days following the commencement of the Offer, determined in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act (for the “Initial Expiration Date,” and such date, or such subsequent date to which the expiration of the Offer is extended in accordance with the terms of this purpose calculated Agreement, the “Expiration Date”). Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with Section 14d-1(g)(38.1,
(i) under the ▇▇▇▇ ▇▇▇if on any then-scheduled Expiration Date (A) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Tender Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived(B) any of the other Offer Conditions shall not have been satisfied (and, from time to timethe extent permitted under the terms of this Agreement, until shall not have been waived by Parent), then Merger Sub may, and Parent may cause Merger Sub to, without limiting Merger Sub’s and Parent’s obligations under clause (ii) of this Section 1.1(c), extend the earliest Offer on one or more occasions, in consecutive increments of up to occur of five Business Days each (x) or such longer period as may be agreed by the satisfaction or waiver of such conditions Company), up to and (y) including the End Outside Date, the length of each such period to be determined by Merger Sub (or Parent on its behalf) in its sole discretion, to permit such Offer Condition to be satisfied; and
(ii) (w) Merger Sub shall, and (2) Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the its staff thereof or NASDAQ applicable to the Offer or any period required by Applicable LawOffer; provided that Merger Subsidiary Sub shall not be required to extend the Offer beyond to a date later than the End Outside Date. Following expiration ;
(x) if on any then-scheduled Expiration Date, any of the OfferOffer Conditions set forth in clauses (b) through (i) of Annex A is not satisfied (and, to the extent permitted under the terms of this Agreement, has not been waived by Parent), but is capable of being satisfied prior to the Outside Date, then, if requested by the Company, Merger Subsidiary maySub (or Parent on its behalf) shall extend the Offer for one or more extension periods of up to five Business Days each (or for such longer period as may be agreed by the Company), up to and including the Outside Date, the length of each such period to be determined by Merger Sub (or Parent on its behalf) in its sole discretiondiscretion to permit such Offer Condition to be satisfied; and (y) if on any then-scheduled Expiration Date, provide a subsequent offering the Offer Conditions (other than the Minimum Tender Condition) have been satisfied (or, to the extent permitted, have been waived by Parent), but the Minimum Tender Condition has not been satisfied, then, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one or more extension periods of at least five Business Days each, up to and including the Outside Date, the length of each such period to be determined by the Company in its sole discretion to permit such Offer Condition to be satisfied.
(“Subsequent Offering Period”d) in accordance with Subject to the foregoing, including the requirements of Rule 14d-11 of the 1934 Exchange Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, 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 Company 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 promptly after the Expiration Date. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares in any Subsequent Offering Period order to comply with applicable Laws. Any such delay in payment shall be paid net to effected in compliance with Rule 14e-1(c) under the holder thereof in cash, subject to reduction for any applicable withholding TaxesExchange Act.
(be) 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. If this Agreement is terminated pursuant to Article 8, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. 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 applicable Law, all tendered Shares to the registered holders thereof.
(f) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 of the Exchange Act), Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that which shall include as exhibits contain or incorporated incorporate by reference theretoan offer to purchase reflecting the terms and conditions of this Agreement, including the Offer to Purchase Conditions, and forms a form of the letter of transmittal and summary advertisementadvertisement and other ancillary documents and instruments, if any, in respect of the Offer (collectivelysuch Schedule TO and the documents included therein, together with any amendments or supplements thereto, and including exhibits thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company SharesShares as and to the extent required by the Exchange Act. The Each of Parent and Merger Sub shall cause the Offer Documents to (A) comply in all material respects with the Exchange Act and other applicable Laws and (B) not contain any untrue statement of 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; provided, however, that the foregoing shall not apply to any information contained or incorporated by reference in any Offer Document that was furnished or provided by the Company. Promptly after the date of this Agreement, the Company shall promptly furnish to Parent and Merger Subsidiary Sub in writing all information concerning the Company and its stockholders that may be required by applicable securities laws Law or reasonably requested by Parent or Merger Subsidiary Sub for inclusion in the Schedule TO Offer Documents or the Offer Documentsfor any action contemplated by this Section 1.1. Each of Parent, Merger Subsidiary Sub and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary Sub agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Company Shares, in each case as as, and to the extent extent, required by applicable U.S. federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to the reasonable additions, deletions or changes suggested by the Company or its counsel. Parent and Merger Sub shall provide the Company and its counsel with copies of any comments made written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive after the date hereof from the SEC or its staff with respect to the Offer Documents promptly after receipt of those comments. The Company and its counsel shall be given a reasonable opportunity to review any written responses to such SEC comments, and Parent shall give good faith consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (A) respond promptly to any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from of the SEC or its staff with respect to the Schedule TO Offer Documents.
(g) If, between the date of this Agreement and the Effective Time, the outstanding Shares are changed into a different number or Offer Documents promptly after receipt class of those comments shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other communicationssimilar transaction, then the Offer Price and (B) a reasonable opportunity the Merger Consideration shall each be appropriately adjusted to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECreflect such change.
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 9.1 and (ii) none of the conditions events set forth in Annex I heretoA hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurred and be continuing (and shall not have been waived by Parent), 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)practicable, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (the Offer“Exchange Act”)), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Subsidiary’s obligation Subsidiary to accept for payment and to pay for any Company Shares tendered in (and the Offer obligation of Parent to cause Merger Subsidiary to accept for payment and to pay for any Shares tendered) shall be subject only to (i) the condition that there shall at least 80% of the outstanding Shares be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding withdrawn (the “Minimum Condition”), and (ii) and the other conditions set forth in Annex I. A. Merger Subsidiary expressly reserves the right to waive any of the conditions to increase the Offer and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, (i) decreases the Offer Price or the Cash Portion or the Stock Portion thereof, (ii) changes the form or combination of consideration to be paid in the Offer, (iii) reduces the number of Company Shares sought to be purchased in the Offer or imposes conditions to the Offer in addition to those set forth in Annex IOffer, or (iv) amends the conditions set forth in Annex I in A to broaden the scope of such conditions, add any manner materially adverse to additional conditions, or otherwise adversely affect the holders of Company Shares, and (iiiv) extends the Offer may not be extended except as provided in Section 1.1(b), or (vi) amends or waives the Minimum Condition. It is agreed that the conditions set forth in this Section 2.01(a)Annex A are for the sole benefit of Parent and Merger Subsidiary and may be waived by Parent and Merger Subsidiary, in whole or in part at any time and from time to time, in their sole discretion, other than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent and Merger Subsidiary at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or its Subsidiary will be tendered in the Offer.
(b) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreementthereof, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 Business Days twenty (for this purpose calculated in accordance with Section 14d-1(g)(320) under the ▇▇▇▇ ▇▇▇) business days after the date that the Offer is commenced. Unless this Agreement or ; provided, however, that without the Offer is terminated in accordance with its termsconsent of the Company Board (the “Company Board”), Merger Subsidiary shall extend the Offer may (i) from time to time (1) ifextend the Offer, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived, but not beyond the termination of this Agreement pursuant to Article IX; (yii) extend the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer Offer; or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide (iii) include a subsequent offering period (“Subsequent Offering Period”as such term is defined in Rule 14d-1 under the Exchange Act) in accordance with Rule 14d-11 of to the 1934 ActOffer for a period up to twenty (20) business days. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) accept for payment payment, and pay for (A) as promptly as practicablefor, all Company Shares validly tendered and not withdrawn pursuant to the Offer that Merger Subsidiary becomes obligated to accept for payment and pay for pursuant to the Offer, as promptly as practicable after the final expiration of the Offer. No fraction of a share of Parent Common Stock will be issued in connection with the payment of the Stock Portion upon consummation of the Offer, and but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (Bafter aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The the Offer Price payable in respect shall receive from Parent an amount of each Company Share validly tendered and not withdrawn pursuant cash (rounded to the Offer or validly tendered nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the closing price of one (1) share of Parent Common Stock on the first date Merger Subsidiary accepts Shares for exchange in the Offer, as reported on the Nasdaq National Market (“Nasdaq”). With respect to any Subsequent Offering Period such Shares the Cash Portion shall be paid net to the holder seller thereof in cash, subject to reduction only for any applicable federal back-up withholding Taxesor stock transfer taxes payable by such seller.
(bc) As soon as practicable after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (the “Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the “Preliminary Prospectus”). As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, with respect to the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) shall cause the Offer Documents to be disseminated to holders of Company Shares. The Company Schedule TO shall promptly furnish to contain as an exhibit or incorporate by reference the Preliminary Prospectus (or portions thereof) and forms of the related letter of transmittal and summary advertisement, if any. Parent and Merger Subsidiary agree that they shall cause the Schedule TO, the Preliminary Prospectus and all amendments or supplements thereto (which together constitute the “Offer Documents”) to comply in writing all information concerning material respects with the Company Exchange Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 4.1(c)). Parent and Merger Subsidiary further agree that may the Offer Documents, on the date first published, sent or given to the Company’s shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be required by applicable securities laws stated therein or reasonably requested 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 Subsidiary with respect to information supplied by the Company or any of its shareholders in writing specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company agrees that the information provided by the Company in writing specifically 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 stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and Registration Statement or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary 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 Company Sharesthe Company’s shareholders, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO TO, the Registration Statement and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall agree to provide in writing to the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments or other communications, and (B) shall provide Company and its counsel with a reasonable opportunity to participate in the response of Parent and or Merger Subsidiary to those comments such comments. Parent shall use all reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after its filing and to provide comments on that response (to which reasonable and good faith consideration maintain such effectiveness for so long as shall be given)required for the issuance of Parent Common Stock pursuant to the Offer. Following the time the S-4 is declared effective, including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with shall file the SECfinal prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
Appears in 1 contract
Sources: Merger Agreement (Quovadx Inc)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as 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)execution of this Agreement, Merger Subsidiary Company shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) a tender offer (the "OFFER") for all of the outstanding shares of Zengine Common Stock (other than for shares owned by the Company at the time of the Offer) (the "SHARES") in exchange for shares of Company Common Stock at the exchange ratio of 0.2259 shares of Company Common Stock in exchange for each share of Zengine Common Stock (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE"), subject to the conditions set forth herein and in ANNEX A hereto. No fraction of a share of Company Common Stock will be issued. Instead each Zengine stockholder, whether in the Offer or in the Merger, who would otherwise be entitled to receive a fraction of a share of Company Common Stock, after combining all fractional shares to which such stockholder would be entitled, will receive cash in an amount equal to the product obtained by multiplying (i) the Offer. Merger Subsidiary’s obligation fraction of a share of Company Common Stock to which the holder would otherwise be entitled by (ii) $16.60.
(b) The obligations of Company to commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the conditions set forth herein and in ANNEX A hereto, any of which conditions may be waived by Company Shares tendered in the its sole discretion. The Offer shall be subject made by means of an offer to purchase (the condition that there shall be validly tendered "OFFER TO PURCHASE") containing the terms set forth in accordance with this Agreement and the conditions set forth in ANNEX A hereto.
(c) Company expressly reserves the right to modify the terms of the Offer; provided, immediately that, without Zengine's prior to the scheduled expiration of written consent, Company shall not decrease the Offer (as it may be extended hereunder) and not withdrawn, a Price or decrease the number of Company Shares thatsought, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number amend any condition of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company Shares, the Shares (other than with respect to insignificant changes or amendments and (iii) subject to the Offer may not be extended except as set forth in penultimate sentence of this Section 2.01(a1.1(c). Subject to the terms and conditions of this Agreement) ; PROVIDED, unless the Offer is extended in accordance with the terms of this AgreementHOWEVER, the Offer shall expire at 5:00 p.m.that, New York City time, if on the initial scheduled expiration date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under of the ▇▇▇▇ ▇▇▇) Offer, which shall be 20 business days after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the all conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, Company may, from time to time, time until the earliest to occur of (x) the satisfaction or waiver of such time as all such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation are satisfied or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary maywaived, in its sole discretion, provide a subsequent offering period extend the expiration date; PROVIDED FURTHER, HOWEVER, that without Zengine's prior written consent, the expiration date of the Offer may not be extended beyond 60 calendar days after commencement of the Offer. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by applicable Law (“Subsequent Offering Period”as hereinafter defined) in accordance connection with Rule 14d-11 such increase, in each case without the consent of the 1934 ActZengine. Subject If, immediately prior to the foregoing, and upon the terms and subject to the conditions initial expiration date of the Offer, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company the Shares validly tendered and not withdrawn pursuant to the OfferOffer together with the Shares beneficially owned by Company equal less than 90% of the outstanding Shares, promptly after Company may extend the final Offer for a period not to exceed 20 business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer. In addition, Company may make available a "subsequent offering period," in accordance with Rule 14d-11 of the United States Securities and Exchange Commission (B) the "SEC"), of not greater than 20 business Agreement and Plan of Reorganization Page 3 days. On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, Company shall, accept for payment and pay for all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As as soon as practicable on after the date of commencement expiration of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the public announcement of the execution of this Agreement, Acquisition shall have occurred that, had commence the Offer. The obligation of Acquisition to consummate the Offer been commencedand accept for payment, would give rise and pay for, any shares of Common Stock of ▇▇▇▇▇▇▇▇, par value $1.00 per share (the "▇▇▇▇▇▇▇▇ Shares" and each holder thereof, a "▇▇▇▇▇▇▇▇ Shareholder") tendered pursuant to a right to terminate the Offer pursuant shall be subject solely to any of the conditions set forth in Annex I hereto, as promptly as practicable and EXHIBIT A (any of which may be waived by Acquisition in any event within ten days after its sole discretion). Acquisition reserves the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation right to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with modify the terms of the Offer, immediately prior to except that, without the scheduled expiration consent of ▇▇▇▇▇▇▇▇, Acquisition shall not (i) reduce the Offer (as it may be extended hereunder) and not withdrawn, a number of Company ▇▇▇▇▇▇▇▇ Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions subject to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes reduce the form of consideration price per ▇▇▇▇▇▇▇▇ Share to be paid pursuant to the Offer, decreases the Offer Price (iii) modify or the number of Company Shares sought in the Offer or imposes conditions add to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company SharesEXHIBIT A, and (iiiiv) the Offer may not be extended except as set forth provided in this Section 2.01(a). Subject to 1.01(a) below, extend the terms and conditions Offer, (v) change the form of this Agreementconsideration payable in the Offer, unless the Offer is extended or (vi) make any other change in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under adverse to the ▇▇▇▇ ▇▇▇) after the ▇▇ Shareholders. The initial expiration date that of the Offer is commencedshall be November 20, 1997. Unless this Agreement or Acquisition may extend the Offer is terminated in accordance with its termsapplicable law, Merger Subsidiary but if the conditions set forth in EXHIBIT A are satisfied as of the then scheduled expiration date of the Offer, the Offer may be extended only with the prior written consent of ▇▇▇▇▇▇▇▇ or as required by law. If the conditions set forth in EXHIBIT A are not satisfied or waived by Acquisition as of the scheduled expiration date, Acquisition shall extend the Offer from time to time (1) if, at until the scheduled or extended expiration date earlier of the Offer, the Minimum Condition or any consummation of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; December 31, 1997 (provided that Merger Subsidiary Acquisition shall not be required obligated to extend make any such extension, if a reasonable, well-informed person would conclude that any such condition is incapable of being satisfied by December 31, 1997). Any individual extension of the Offer beyond the End Date. Following expiration shall be for a period of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Actno more than 10 business days. Subject to the foregoingconditions set forth in this Agreement, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Acquisition 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 Offer immediately after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon ▇▇▇▇▇▇▇▇ will not, nor will it permit any of its Subsidiaries (as practicable on defined below) to, tender into the date Offer any Shares beneficially owned by it. For purposes of commencement of the Offerthis Section 1.01 only, Parent and Merger Subsidiary shall "Subsidiaries" means, as to any Person (as defined below): (i) file with the SEC any corporation of which at least a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect majority of the Offer outstanding shares of stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (collectively, together with other than stock having such voting power solely by reason of the happening of any amendments contingency) is at the time directly or supplements thereto, the “Offer Documents”), and indirectly owned or controlled by such Person and/or one or more of its Subsidiaries; (ii) cause any limited liability company, partnership or joint venture in which such Person or Subsidiary of such Person is a managing member, general partner or joint venturer or of which a majority of the Offer Documents to be disseminated to holders partnership or other ownership interests are at the time owned by such Person and/or one or more of Company Sharesits Subsidiaries; or (iii) any entity which is controlled (as defined below) by such Person or any of its Subsidiaries. The Company shall promptly furnish to Parent and Merger Subsidiary in writing For all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each other purposes of Parentthis Agreement, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information "Subsidiaries" shall have become false or misleading the meaning therefor set forth in any material respectArticle III hereof. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders For purposes of Company Sharesthis Agreement, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) "Person" means any comments individual, corporation, company, voluntary association, limited liability company, partnership, joint venture, trust, unincorporated organization or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, entity and (B) "control" (including, with correlative meanings, "controlled by" and "under common control with") means possession, directly or indirectly, of power to direct or cause the direction of the management or policies of a reasonable opportunity to participate in Person (whether through the response ownership of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givensecurities or partnership or other ownership interests, by contract or otherwise), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (Startt Acquisition Inc & Startt Acquisition LLC)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoI, as promptly as practicable and in any event within ten days after the date hereof (or such and in any event no later than five Business Days after the date as the parties may mutually agree in writinghereof), Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence (within the meaning of Rule 14d-2 under the ▇1▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the conditions set forth in Annex I Offer in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions conditions, (y) the reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (yz) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a one or more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act, if, as of the commencement of each such period, there shall not have been validly tendered and not withdrawn pursuant to the 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, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for (A) for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer, promptly Offer after the final expiration of the Offer, and Offer and/or (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, that would give rise to a right to terminate the Offer this Agreement pursuant to any of the conditions set forth in Annex I heretoArticle 8, as promptly as practicable and in any event within ten days after the date hereof hereof, but in no 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 such later date as waiver by Buyer and the parties may mutually agree in writingCompany of the condition set forth under Part 1 of Annex I hereto (the “Pre-Launch Condition”), Merger Subsidiary Buyer shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation The Pre-Launch Condition is for the benefit of both Buyer and the Company and may be waived only by the Company and Buyer jointly (either in whole or in part) by written agreement. No party may invoke the Pre-Launch Condition if the non-satisfaction of such condition is caused by a breach of that party of any of its obligations under this Agreement. The obligations of Buyer to, and of Parent to cause Buyer to, accept for payment payment, and pay for for, any Company Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with satisfaction or waiver (to the terms extent permitted under this Agreement) of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Part 2 of Annex I. Merger Subsidiary 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 to waive at any time to, its sole discretion, waive, in whole or in part, any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, Buyer shall not:
(i) waive or change the Minimum Condition may not be waived, (as defined in Annex I);
(ii) no decrease the Offer Consideration;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company the Shares.
(c) Unless extended as provided in this Agreement, and (iii) the Offer may not be extended except shall expire at 12:00 midnight (New York City time) on the date that is twenty Business Days (calculated as set forth in this Section 2.01(a). Subject Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (such time, the “Initial Expiration Time” or such time and any subsequent time to which the terms and conditions expiration of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.“Expiration Time”). Subject to the provisions of Article 8, New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that if any of the Offer Conditions is commenced. Unless this Agreement not satisfied or waived at the Offer is terminated in accordance with its termsInitial Expiration Time or at any other Expiration Time of the Offer, Merger Subsidiary 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 (1) if, at the scheduled or extended expiration date of the Offer, the Minimum until such Offer Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been Conditions are satisfied or waived, from time ; provided that (i) Buyer shall not be required to time, until extend the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) Offer beyond the End Date, (ii) no such individual extension of the Offer shall be for a period of more than ten Business Days, and (2iii) 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 Offer or any period as may be required by Applicable Law; provided any other Governmental Authority; provided, that Merger Subsidiary Buyer shall not be required to extend the Offer beyond to a date later than the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, Buyer shall (and the Offer Documents shall so indicate) provide a subsequent offering period (“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 1934 Act). The Offer may not be terminated prior to the 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 Article 8.
(d) Subject to the foregoingterms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Buyer shall, and upon the terms and subject to the conditions of the OfferParent shall cause it to, Merger Subsidiary shall accept for payment and pay for (A) for, as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly practicable after the final expiration of the Offer, and all Shares (Bi) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or and (ii) validly tendered in any 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 holder thereof Offer Consideration pursuant to Section 2.09 to the seller in cash, without interest, on the terms and subject to reduction for any applicable withholding Taxesthe conditions of this Agreement.
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms a form of letter of transmittal and summary advertisement, if any, in respect of the Offer advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company SharesShares to the extent required by applicable United States federal securities laws and any other Applicable Law. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Buyer all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion the 1934 Act to be set forth in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Buyer and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. 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 any such document is filed with the SEC, and Parent and Merger Subsidiary Buyer shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Buyer shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary 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 receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary Buyer to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary Buyer or their counsel in any discussions or meetings with the SECSEC or other Governmental Authorities to the extent such participation is permitted by the SEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had been terminated in accordance with Section 8.01 and provided further that the Offer been commenced, would give rise Company is prepared (in accordance with Section 2.02(c)) to a right to terminate file the Offer pursuant to any of Schedule 14D-9 on the conditions set forth in Annex I heretosame date as Merger Sub commences the Offer, as promptly as practicable and in any event within ten days after the date hereof (or such and in any event no later than 10 Business Days after the date as the parties may mutually agree in writingof initial public announcement of this Agreement), Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under of the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer to purchase any and all of the outstanding Shares at the Offer Price. The obligation of Merger Subsidiary’s obligation Sub to accept for payment and pay for any Company Shares validly tendered in and not withdrawn pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. A and no other conditions (the “Offer Conditions”). The Company agrees that no Shares held by any of its Subsidiaries will be tendered pursuant to the Offer.
(b) Merger Subsidiary 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 conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that that, unless otherwise provided by this Agreement or previously approved by the Company in writingwriting (which approval may be granted or withheld by the Company in its sole discretion), Merger Sub, and Parent on behalf of Merger Sub, shall not, subject to applicable Law, (i) decrease the Minimum Condition may not be waivedOffer Price, (ii) no change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases the Offer Price or (iii) decrease the number of Company Shares sought in the Offer or imposes Offer, (iv) impose conditions to the Offer in addition to those set forth the Offer Conditions, (v) amend or modify any of the Offer Conditions in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company Shares, and (iiivi) change or waive the Offer may not be extended except Minimum Tender Condition or (vii) extend or otherwise change the Expiration Date other than as set forth in required or permitted by this Section 2.01(a). Agreement.
(c) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 Business Days 20 business days (for calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the expiration of the Offer is extended in accordance with this purpose calculated Agreement, the “Expiration Date”).
(d) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with Section 14d-1(g)(38.01, Merger Sub may, without the consent of the Company, (i) under the ▇▇▇▇ ▇▇▇) after the date that extend the Offer is commencedfor one or more periods of time of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) if at any then-scheduled Expiration Date any Offer Condition has not been satisfied (and, to the extent permitted, shall not have been waived by Parent) or (ii) elect to provide a Subsequent Offering Period. Unless The Offer Price may be increased, and the Offer may be extended to the extent required by Law in connection with such increase in the Offer Price, in each case without the consent of the Company.
(e) Subject to the terms and conditions of this Agreement, unless this Agreement or the Offer is has been terminated in accordance with its termsSection 8.01, Merger Subsidiary Sub, or Parent on behalf of Merger Sub, shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date request of the OfferCompany on one or more occasions for periods of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) up to and including the Outside Date, the Minimum Condition or if at any then-scheduled Expiration Date any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall Conditions have not have been satisfied or waived. In addition, from time to timeMerger Sub, until or Parent on behalf of Merger Sub, shall extend the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) Offer for any period or periods if required by any Law, rule, regulation, interpretation or position of the SEC or the staff thereof or the NASDAQ Global Market (“NASDAQ”) applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Offer.
(f) Following expiration of the Offer, Merger Subsidiary Sub (or Parent on its behalf) may, 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 1934 ActExchange Act if, as of the commencement of such period, there shall not have been validly tendered (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer, that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company in accordance with Section 302A.621 of the MBCA. The Offer Documents shall provide for the possibility of a “subsequent offering period”.
(g) Subject to the foregoing, including the requirements of Rule 14d-11 of the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not properly withdrawn pursuant to the Offer or promptly after the Expiration Date and (B) each Share validly tendered in any Subsequent Offering Period promptly after such Share is so tendered. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the 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 in payment shall be effected in compliance with Rule 14e-1(c) under the Exchange Act.
(h) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable Tax Law. To the extent that amounts are so withheld by Merger Sub, such amounts shall be (a) paid net over to the appropriate Governmental Authority and (b) treated for all purposes of this Agreement as having been paid to the holder thereof of Shares in cash, subject to reduction for any applicable respect of which such deduction and withholding Taxeswas made by Merger Sub.
(bi) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any change in the number of shares of outstanding Company Common Stock by reason of any stock dividend, stock split, recapitalization, combination, exchange of shares, merger, consolidation, reorganization or the like occurring or having a record date on or after the date of this Agreement and prior to the Acceptance Time; provided, however, that nothing in this Section 2.01(i) shall be construed as permitting the Company to take any such action or to enter into any transaction otherwise prohibited by this Agreement.
(j) 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 Section 8.01. If this Agreement is terminated pursuant to Section 8.01, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. 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 applicable Law, all tendered Shares to the registered holders thereof.
(k) As soon promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall Sub shall: (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including any exhibits thereto, the “Schedule TO”) that ), which shall include as exhibits or incorporated by reference theretocontain an offer to purchase reflecting the terms and conditions of this Agreement, and a form of the Offer to Purchase and forms of letter of transmittal and summary advertisementadvertisement and other ancillary documents and instruments, if any, in respect of the Offer (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments or supplements thereto, and including exhibits thereto, the “Offer Documents”), ; (ii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes; and (iiiii) cause the Offer Documents to be disseminated to holders of Company SharesShares as and to the extent required by the Exchange Act and the MBCA. The Company shall promptly furnish to Parent and Merger Subsidiary Sub in writing all information concerning the Company that may be required by applicable securities laws Law or reasonably requested by Parent or Merger Subsidiary Sub for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary Sub agree to take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Company Shares, in each case as as, and to the extent extent, required by applicable U.S. federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested by the Company and or its counsel. Parent and Merger Subsidiary Sub shall promptly provide the Company and its counsel with (A) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time after the date hereof from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, comments. The Company and (B) its counsel shall be given a reasonable opportunity to participate in review any written responses to such SEC comments, and Parent shall give due consideration to the response of reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(l) Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration Sub shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings promptly file with the SECCommissioner of Commerce of the State of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes.
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred thatbeen terminated in accordance with Article X, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any (ii) all of the conditions set forth in clauses 2(a), (b), (c), (d), (e), (f), (i), (j) and (k) of Annex I heretoshall then be satisfied (in the case of clause 2(f), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived by Parent or Acquisition Sub and (iii) the Company has timely provided any information required to be provided by it pursuant to Section 2.01(h), as promptly as practicable after the date of this Agreement (and in any event within ten days after Business Days of the date hereof (or such later date as the parties may mutually agree in writingof this Agreement), Merger Subsidiary Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer .
(as it may be extended hereunderb) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent and Acquisition Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), as soon as practicable after the Expiration Date, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Parent and Acquisition Sub expressly reserve 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 of the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Parent and Acquisition 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) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects holders of Shares generally, (F) waive, amend or otherwise change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be terminated prior to the Expiration Date, unless this Agreement is terminated in accordance with Article X.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 twenty (20) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary 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, or waived by Parent and Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer from time for one or more periods of not more than 20 Business Days each (the length of such periods to time be determined by Parent) or such other number of Business Days as the parties may agree (1subject to the right of Acquisition Sub to waive any Offer Condition (other than the Minimum Condition) ifin accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with Article X of this Agreement); and
(ii) Acquisition Sub shall extend, at the scheduled or extended expiration date of the Offerand Parent shall cause Acquisition Sub to extend, the Minimum Condition or any of Offer for the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any minimum period required by any rule, regulationApplicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff.
(f) Without limiting the staff thereof applicable to other provisions of this Agreement, if at any time during the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend between the Offer beyond date of this Agreement and the End Date. Following expiration of time when Acquisition Sub accepts, for the Offerfirst time, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not properly withdrawn pursuant to the Offer (the “Offer Acceptance Time”), any change in the outstanding shares of capital stock of the Company shall occur by reason of any reclassification, recapitalization, stock split or validly tendered in combination, exchange or readjustment of shares, or any Subsequent Offering Period stock dividend thereon with a record date during such period, the Offer Price shall be paid net equitably adjusted to the holder thereof in cashreflect such reclassification, subject to reduction for any applicable withholding Taxesrecapitalization, stock split or combination, exchange or readjustment of shares, or stock dividend thereon.
(bg) In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (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 depositary acting on behalf of Acquisition Sub to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(h) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Acquisition Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company Acquisition Sub agree that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents”) filed by either Parent or Acquisition Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Law. Each of Parent, Merger Subsidiary Acquisition Sub and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsApplicable Law. The Company shall promptly furnish or otherwise make available to Parent and Acquisition Sub or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s stockholders that may be required in connection with any action contemplated by this Section 2.01(h) including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, SEC and Parent and Merger Subsidiary shall give reasonable and Acquisition Sub agree to consider in good faith consideration to any comments made by the Company and its counselsuch comments. Parent and Merger Subsidiary shall Acquisition Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Acquisition Sub shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments the Offer Documents or the Offer.
(i) Parent shall cause to be provided to Acquisition Sub on a timely basis all of the funds necessary to purchase any Shares that response (Acquisition Sub becomes obligated to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with purchase pursuant to the SECOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, 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 under the ▇1▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (Packeteer Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in Annex A or Annex B hereto shall have occurred thator be existing, had as promptly as practicable, but in no event later than five business days following the Offer public announcement of the execution of this Agreement, Acquisition and the Company shall jointly commence the Offer. Upon the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, Acquisition and the Company shall accept for payment and pay for Shares which have been commencedvalidly tendered and not withdrawn as soon as practicable after the expiration of the Offer.
(b) The obligations of Acquisition to accept for payment any Shares tendered shall be subject to the satisfaction of only those conditions set forth in Annex A hereto and the obligation of the Company to accept for payment any Shares tendered shall be subject to the satisfaction of only those conditions set forth in Annex B hereto.
(c) Subject to the requirements of applicable law, would give rise to a right to terminate the Offer pursuant to any of Acquisition may waive the conditions set forth in Annex I heretoA in its sole discretion; PROVIDED, as promptly as practicable and in any event within ten days after HOWEVER, that without the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms prior written consent of the OfferCompany, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and Acquisition will not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) decrease the Minimum Condition may not be waivedPer Share Amount or the number of Shares sought in the Purchaser Offer, (ii) no change may be made that changes the form of consideration to be paid pursuant to in the Purchaser Offer, decreases (iii) amend or waive the Minimum Condition (as defined Annex A hereto) or impose any additional conditions on the Purchaser Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends other than the conditions set forth in Annex I A, (iv) amend any other term of the Purchaser Offer in any manner materially adverse to the holders of Shares or (v) extend the expiration date of the Purchaser Offer beyond April 30, 2000.
(d) Subject to the requirements of applicable law, the Company Sharesmay waive the conditions set forth in Annex B in its sole discretion; PROVIDED, and HOWEVER, that without prior written consent of Acquisition, the Company will not (i) decrease the Per Share Amount or the number of Shares sought in the Company Offer, (ii) change the form of consideration to be paid in the Company Offer, (iii) amend or waive the Minimum Condition or impose any additional conditions on the Company Offer may not be extended except as other than the conditions set forth in this Annex B, (iv) amend any other term of the Company Offer in any manner adverse to Acquisition or (v) extend the expiration date of the Company Offer beyond April 30, 2000.
(e) Notwithstanding the foregoing, but subject in all events to Section 2.01(a). Subject to 8.01, Acquisition may, without the terms and conditions consent of this Agreementthe Company, unless extend the Purchaser Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City any time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer and from time to time (1) if, and at the direction of Acquisition, the Company shall accordingly extend the Company Offer), (i) if at the then scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the obligations of Acquisition and the Company to accept Shares for payment (other than the Minimum Condition, as to which Acquisition may extend the Purchaser Offer set forth in clause (I)(Bup to 10 business days) of the first paragraph of Annex I shall not have been satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived; or (y) the End Date, and (2ii) for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer or any period required by Applicable Law; Offer.
(f) Notwithstanding the foregoing, Acquisition may, without the consent of the Company (and at the direction of Acquisition and provided that Merger Subsidiary the representation set forth in Section 5.05 shall not be required to remain true and correct, the Company shall), increase the Per Share Amount and extend the Offer beyond to the End Date. Following expiration extent required by applicable law in connection with any such increase.
(g) As soon as practicable following the commencement of the Offer, Merger Subsidiary may, in the Company shall commence a tender offer and consent solicitation for all of its sole discretion, provide a subsequent offering period outstanding 11.75% Senior Subordinated Notes due 2005 and 11.75% Series C Senior Subordinated Notes due 2005 (“Subsequent Offering Period”) in accordance with Rule 14d-11 the "Debt Tender Offer"). The Debt Tender Offer shall be made by means of the 1934 Act. Subject an offer to the foregoing, purchase and upon consent solicitation on the terms and subject set forth in Annex C 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 Company 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, subject to reduction for any applicable withholding Taxesthis Agreement.
(bh) As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary shall with respect to the Offer (i) the parties hereto, together with such other persons as shall be required to be included as parties to such filing, shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer (together with all any amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”) that "). The Schedule TO shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer an offer to Purchase purchase and forms a form of letter of transmittal and summary advertisement, if any, in respect of any other documents related to the Offer (collectivelythe Schedule TO, the offer to purchase and such other documents, together with any amendments or and supplements thereto, are collectively referred to herein as the “"Offer Documents”"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and (ii) on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company or Acquisition with respect to information supplied by the other party in writing for inclusion in the Offer Documents. Each of the parties hereto shall take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Company Shares. The Company shall promptly furnish the Company's stockholders, in each case as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary and the Company agrees parties hereto shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent , and Merger Subsidiary agree to shall take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Sharesthe Company's stockholders, in each case as and to the extent required by applicable U.S. federal securities laws. The Company Each of the parties hereto and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC. In addition, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by each of the Company and its counsel. Parent and Merger Subsidiary parties hereto shall provide to the Company other party and its counsel with (A) in writing any comments or other communications, whether written communications that such party or oral, that Parent, Merger Subsidiary or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (Transportation Technologies Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article IX and none of the conditions events set forth in Annex I heretoA hereto shall have occurred and be existing, 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)reasonably practicable, Merger Subsidiary Purchaser shall commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer to acquire all the outstanding Shares at a price of $19.50 per Share, net to the seller in cash, subject to applicable withholding of taxes, without interest (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). Merger Subsidiary’s obligation Subject to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver of the other conditions set forth in Annex A hereto, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for any Company Shares validly tendered in 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 condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) Condition and the other conditions set forth in Annex I. Merger Subsidiary A hereto, and shall reflect, as appropriate, the other terms set forth in this Agreement. Parent and Purchaser expressly reserves reserve the right right, in their sole discretion, subject to compliance with the Exchange Act, to waive any of the conditions to the Offer such condition and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing, Parent and Purchaser shall not (i) amend or waive the Minimum Condition may not be waivedCondition, (ii) no change may be made that changes decrease the form Offer Price, (iii) decrease the maximum number of consideration Shares to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought purchased in the Offer or imposes conditions to (iv) amend any other term or condition of the Offer in addition any manner or impose any term or condition that is adverse to those set forth in Annex Ithe holders of the Shares without the written consent of the Company (such consent to be authorized by the Company Board or a duly authorized committee thereof). It is agreed that the terms and conditions of the Offer, or amends including, but not limited to, the conditions set forth in Annex I A hereto, are for the benefit of Parent and Purchaser and may be asserted by Parent and Purchaser regardless of the circumstances giving rise to any such condition.
(b) The initial expiration date of the Offer shall be the date which is 20 business days after the commencement date of the Offer. Notwithstanding the foregoing, in the event that any manner materially adverse condition 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer Annex A hereto shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement not have been satisfied or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, waived at the scheduled or any extended expiration date of the Offer, Purchaser shall (unless otherwise notified by the Minimum Condition or any Company), and Purchaser shall otherwise be entitled to, extend the expiration date of the conditions Offer two times in increments of up to 10 business days each (unless otherwise agreed by Parent and the Offer set forth in clause (I)(BCompany) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of each such conditions and condition, (y) the End Date, termination of this Agreement in accordance with its terms and (2z) for any period required by any ruleeither November 13, regulation2000, interpretation or position if the condition set forth in clause (i) of the SEC first paragraph of Annex A shall not have been satisfied, or the staff thereof applicable to the Offer or October 16, 2000 if any period required by Applicable Lawother condition set forth in Annex A hereto shall not have been satisfied; provided provided, however, that Merger Subsidiary Purchaser shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.extend
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred The Merger Agreement provides that, had subject to the obligation of Exa to provide certain information and certain other conditions, Purchaser will commence the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable (and in any event within ten days on or prior to October 12, 2017) after the date hereof (or such later date as execution of the parties may mutually agree Merger Agreement, and that, subject to the satisfaction of the Minimum Condition and the other conditions that are described in writing), Merger Subsidiary shall commence (within the meaning Section 15—"Conditions of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation " of this Offer to Purchase, Purchaser will accept for payment and pay for any Company all Shares validly tendered and not properly withdrawn in the Offer shall be subject to as soon as practicable (in compliance with Rule 14e-1(c) promulgated under the condition that there shall be validly tendered in accordance with Exchange Act) after the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) Expiration Time. Parent and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary Purchaser expressly reserves reserve the right to waive any of the conditions to the Offer and to make any change (where permitted by applicable law), in the terms of their sole discretion, in whole or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writingpart, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) the Merger Agreement and described in Section 15—"Conditions of the first paragraph Offer" of Annex I shall this Offer to Purchase, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer, except that, without the prior written consent of Exa, which consent may be withheld in its sole discretion, or except as otherwise contemplated by the Merger Agreement, neither Parent nor Purchaser will (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares sought to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) add any condition to the Offer not have been satisfied set forth in the Merger Agreement and described in Section 15—"Conditions of the Offer" of this Offer to Purchase, (vi) amend or waivedmodify any of the conditions to the Offer set forth in the Merger Agreement and described in Section 15—"Conditions of the Offer" of this Offer to Purchase in a manner adverse to the holders of Shares, from time (vii) waive the Regulatory Approval Condition or the Governmental Authority Condition, (viii) extend the Offer in a manner other than pursuant to timeand in accordance with the Merger Agreement, until (ix) otherwise amend the earliest Offer in any manner materially adverse to occur the holders of Shares or (x) provide for a "subsequent offering period" (or any extension thereof) in accordance with Rule 14d-11 promulgated under the satisfaction or waiver of such conditions and (y) Exchange Act. The Merger Agreement provides that Purchaser: • will extend the End Date, and (2) Offer for any period or periods required by any ruleapplicable law or applicable rules, regulationregulations, interpretation interpretations or position positions of the SEC or its staff, as well as any of the staff thereof applicable rules and regulations, including listing standards, of NASDAQ or any other United States national securities exchange registered under the Exchange Act on which the Shares are then traded; and • unless the Offer is terminated in accordance with the Merger Agreement, Purchaser will extend the Offer for one (1) or more successive periods of ten (10) business days each if at the otherwise-scheduled expiration of the Offer any of the conditions to the Offer other than the Minimum Condition set forth in the Merger Agreement and described in Section 15—"Conditions of the Offer" of this Offer to Purchase are not satisfied or, where permitted by applicable law, waived by us or any period required Parent in order to permit the satisfaction of such conditions. The Merger Agreement further provides that, unless the Offer is terminated in accordance with the Merger Agreement, (i) Purchaser may extend the Offer for one (1) or more successive periods of ten (10) business days each or (ii) Exa may, in its sole discretion, request that Purchaser extend the Offer for up to two (2) periods of ten (10) business days each if at the otherwise-scheduled Expiration Date the Minimum Condition is not satisfied or, where permitted by Applicable Law; provided that Merger Subsidiary shall applicable law, waived by us or Parent, and we are not otherwise obligated to extend the Offer. In no event will Purchaser be required to extend the Offer beyond the End Date. Following expiration earlier to occur of (a) the Offer, date the Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) Agreement is terminated in accordance with Rule 14d-11 of its terms or (b) April 27, 2018. The foregoing paragraphs will not be deemed to impair, limit or otherwise restrict in any manner Parent's rights to terminate the 1934 ActMerger Agreement in accordance with its terms. Subject Parent and Purchaser have agreed that they will not terminate or withdraw the Offer prior to any scheduled Expiration Date except if the foregoingMerger Agreement has been terminated pursuant to its terms. If the Merger Agreement is terminated pursuant to its terms, and upon the terms and subject then Purchaser is required to the conditions of the Offer, Merger Subsidiary shall not accept for payment and pay for (A) as promptly as practicable, all Company any Shares validly tendered and not withdrawn pursuant to the Offer, and to promptly after (and in any event within one (1) business day of such termination), irrevocably and unconditionally terminate the final expiration Offer. If the Offer is terminated or withdrawn by Purchaser, or the Merger Agreement is terminated pursuant to its terms prior to the purchase of Shares in the Offer, Purchaser will promptly return and (B) will cause any depositary acting on behalf of Purchaser to return, in accordance with applicable law, all Company tendered Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesregistered holders thereof.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing Upon the terms and subject to the conditions of this Agreement, unless otherwise agreed in writing by Parent and the Company, no earlier than August 14, 2019 and no later than August 19, 2019, Merger Sub shall, and Parent shall have occurred thatcause Merger Sub to, had commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment, and pay for, any Shares tendered pursuant to the Offer been commenced, would give rise are subject only to a right the satisfaction or waiver (to terminate the Offer pursuant to any extent permitted under this Agreement) of the conditions set forth in Annex I hereto(as they may be amended in accordance with this Agreement, as promptly as practicable the “Offer Conditions”).
(b) To the extent permitted by Law, Parent and Merger Sub expressly reserve the right, at any time, to waive, in whole or in part, any event within ten days after Offer Condition (other than the date hereof (or such later date as the parties may mutually agree in writingMinimum Condition), to increase the Offer Price or to modify the terms of the Offer; provided, however, that, without the prior written consent of the Company (in its sole and absolute discretion), neither Parent nor Merger Subsidiary Sub shall commence (i) reduce the maximum number of Shares sought to be purchased in the Offer (other than pursuant to Section 1.1(h)), (ii) reduce the Offer Price (other than pursuant to Section 1.1(h)) or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, or modify or amend any existing Offer Conditions, in a manner that is adverse to the holders of Shares, (v) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (vi) provide for any “subsequent offering period” within the meaning of Rule 14d-2 14d-11 under the ▇▇▇▇ ▇▇▇Exchange Act or (vii) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offerotherwise amend, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly modify or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to supplement the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company Shares, and (iii) the . The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated prior to the terms and conditions of this Agreementits scheduled Expiration Time, unless the Offer this Agreement is extended terminated in accordance with the terms of this Agreement, the Article VII.
(c) The Offer shall initially expire at 5:00 p.m., New York City time, on the date that is 21 twenty one (21) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement of the Offer is commenced. Unless this Agreement or (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer is terminated has been extended pursuant to and in accordance with its termsSection 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, (or in the case of clause (iv) below, Merger Sub may) extend the Offer from time to time time:
(1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2i) for any the minimum period as required by any rule, regulation, interpretation or position of the SEC or SEC, the staff thereof or The New York Stock Exchange (the “NYSE”) applicable to the Offer;
(ii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any Proceeding in accordance with Section 8.5 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger Sub, in which case the Expiration Time shall be extended (A) for the period during which such Proceeding is pending or (B) by such other time period established by the Governmental Entity presiding over such Proceeding, as the case may be, but, in each case of clauses (A) and (B), not past the End Date;
(iii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or any (B) waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), in which case Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer, in consecutive periods of five (5) Business Days each (with each such period required to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Applicable LawParent and the Company) on such number of occasions as shall be necessary to permit the satisfaction of such Offer Conditions; provided provided, however, that Merger Subsidiary Sub shall not be required to extend the Offer beyond to a date later than the End Date. Following expiration ; or
(iv) if, at the then-scheduled Expiration Time, (A) the full amount of the OfferDebt Financing has not been funded and will not be available to be funded at the Offer Acceptance Time and the Closing and (B) Parent and Merger Sub acknowledge and agree in writing that (1) the Company would be entitled to terminate this Agreement pursuant to Section 7.1(f) and receive the Parent Termination Fee, and (2) all Offer Conditions set forth in paragraphs (d), (e), (f) and (j) of Annex I will be deemed to be satisfied or waived at the Expiration Time of the Offer after giving effect to any extension pursuant to this clause (iv) (if such Offer Conditions were actually satisfied at the time of such extension), Merger Subsidiary may, Sub shall have the right in its sole discretiondiscretion to extend the Offer on up to four (4) occasions in consecutive increments of five (5) Business Days each (with each such period to end at 5:00 p.m., provide New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Merger Sub shall not be permitted to extend the Offer to a subsequent offering period (“Subsequent Offering Period”date later than the End Date and provided, further, that for the avoidance of doubt, no extension pursuant to this Section 1.1(d)(iv) in accordance with Rule 14d-11 of shall preclude the 1934 ActCompany from exercising its right to terminate this Agreement pursuant to Section 7.1(f). Subject to the foregoingMerger Sub shall not, and upon Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 1.1(d).
(e) On the terms and subject to the conditions of this Agreement, including satisfaction or waiver of all of the OfferOffer Conditions, (i) prior to 9:00 a.m., New York City time, on the Business Day (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Time, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment and pay (the time of acceptance for (Apayment, the “Offer Acceptance Time”) as promptly as practicable, all Company Shares validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within two (2) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer at the Offer Acceptance Time; provided, that with respect to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be under no obligation to make any payment for such Shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. Parent shall provide or cause to be provided to Merger Sub, at or prior to the Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, promptly after the final expiration and shall cause Merger Sub to fulfill all of the Offer, and Merger Sub’s obligations under this Agreement.
(Bf) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Share shall be paid on the terms and subject to the conditions of this Agreement. The Company Share validly agrees that no Shares held by the Company or any of its Subsidiaries will be 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 TaxesOffer.
(bg) As soon as practicable on Unless this Agreement is validly terminated in accordance with Article VII, neither Parent nor Merger Sub shall terminate or withdraw the date of commencement Offer prior to any scheduled Expiration Time without the prior written consent of the OfferCompany (in its sole and absolute discretion). In the event this Agreement is validly terminated in accordance with Article VII, Parent Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement promptly return, or cause any depositary acting on Schedule TO with respect behalf of Merger Sub to promptly return, all tendered shares to the Offer tendering stockholders in accordance with applicable Law.
(together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”h) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and Subject to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders obligations of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent Subsidiaries pursuant to Section 5.1, the Offer Price shall be adjusted appropriately and Merger Subsidiary shall provide proportionately to reflect the Company and its counsel with effect of any stock split, reverse stock split, stock dividend (A) including any comments dividend or other communicationsdistribution of securities convertible into Shares), whether written reorganization, recapitalization, reclassification, combination, exchange of shares or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff other similar change with respect to Shares occurring on or after the Schedule TO date hereof and at or prior to the Offer Documents promptly after receipt of those comments or other communicationsAcceptance Time, and (B) a reasonable opportunity such adjustment to participate in the response Offer Price shall provide to the holders of Parent and Merger Subsidiary Shares the same economic effect as contemplated by this Agreement prior to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECsuch action.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Section 9.01, had the Offer been commencedPurchaser shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoand Parent shall cause Purchaser to, 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)commence, Merger Subsidiary 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 ten (10) Business Days following the Offerdate of this Agreement. Merger Subsidiary’s The obligation of Purchaser to (and Parent to cause Purchaser to) accept for payment and pay for any Company all Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms satisfaction of each of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary A hereto (the “Offer Conditions”), and not to any other conditions. Purchaser expressly reserves the right to waive any of the conditions Offer Conditions, to increase the Offer Price, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by without the prior written consent of the Company in writing, neither Purchaser nor Parent shall (i) waive the Minimum Condition may not be waived(as defined in Annex A), (ii) no decrease the Offer Price payable in the Offer or change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases (iii) reduce the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or imposes Offer, (iv) impose conditions to the Offer in addition to those set forth the Offer Conditions or amend, modify or supplement any of the Offer Conditions or any other term of the Offer in Annex I, or amends the conditions set forth in Annex I in any a manner materially that is adverse to the holders of Company Shares, and or (iiiv) extend (or make any other amendment that would have the effect of extending) the Offer may not be extended Initial Expiration Date except as set forth in this otherwise required or permitted by Section 2.01(a2.01(c). .
(b) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., 11:59 p.m. (New York City time, ) on the date that is 21 twentieth (20th) Business Days Day (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) and 14d-2 promulgated under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement of the Offer is commenced. Unless this Agreement or (the “Initial Expiration Date”) or, if the Offer is terminated has been extended in accordance with this Agreement, at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”).
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement but subject to the provisions of Article IX, (i) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for any minimum period or periods (A) required by applicable Law, (B) required by applicable rules, regulations, interpretations or positions of the SEC or its termsstaff or (C) required by any of the rules and regulations, Merger Subsidiary including listing standards, of The NASDAQ Global Select Market (“Nasdaq”) or any other United States national securities exchange registered under the Exchange Act on which the applicable common stock is then traded, (ii) Purchaser shall extend the Offer from time if at any then-scheduled Expiration Date, the Company shall have brought any action in accordance with Section 10.09 to time (1) if, at enforce specifically the scheduled or extended expiration date performance of the Offerterms and provisions of this Agreement by Parent or Purchaser (A) for the period during which such action is pending or (B) for such other time period established by the court presiding over such Action, (iii) in the Minimum Condition or event that any of the conditions Offer Conditions are not satisfied or, to the extent permitted, waived, as of any then-scheduled Expiration Date, Purchaser shall extend the Offer set forth in clause for successive extension periods of five (I)(B5) Business Days each until all of the Offer Conditions are satisfied or, to the extent permitted, waived; provided, however, that notwithstanding the foregoing clauses (i), (ii) and, (iii) of the first paragraph of Annex I this Section 2.01(c), (A) in no event shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not Purchaser be required to extend the Offer beyond the End earlier to occur of (1) the date this Agreement is terminated pursuant to Section 9.01 or (2) the Outside Date and (B) if the Marketing Period has ended and the sole then-unsatisfied Offer Condition is the Minimum Condition, Purchaser may, and the Company may require Purchaser to, extend the Offer for up to four (4) occasions in consecutive periods of five (5) Business Days each and (iv) if, at the then scheduled Expiration Date. Following expiration , (A) the full amount of the OfferDebt Financing will not be available to be funded at the consummation of the Offer and the Closing (other than as a result of a breach by Parent or Purchaser of any of their representations, Merger Subsidiary warranties or covenants set forth in Section 5.08 and Section 7.15 of this Agreement) and (B) Parent and Purchaser acknowledge and agree in writing that (1) the Company may, at any time following such then-scheduled Expiration Date (without giving effect to any extension pursuant to this clause (iv)), terminate this Agreement pursuant to Section 9.01(d)(iv) and receive the Parent Termination Fee and (2) all Offer Conditions set forth in paragraphs (d), (e) and (f) of Annex A will be deemed to have been satisfied or waived at the Expiration Date of the Offer after giving effect to any extension pursuant to this clause (iv), Purchaser shall have the right in its sole discretiondiscretion to extend the Offer on up to four (4) occasions in consecutive increments of five (5) Business Days each (each such increment to end at 11:59 p.m. (New York City time) on the last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company); provided that Purchaser shall not be permitted to extend the Offer to a date later than the Outside Date.
(d) Purchaser shall not, provide a subsequent offering period and Parent shall cause Purchaser not to, terminate or withdraw the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 9.01. If this Agreement is terminated pursuant to Section 9.01, Purchaser shall, and Parent shall cause Purchaser to, promptly (“Subsequent Offering Period”and in any event within one (1) Business Day) terminate the Offer and not acquire any Shares pursuant thereto, and Purchaser shall, and Parent shall cause Purchaser to, promptly (and in any event within one (1) Business Day of such termination) return, and shall cause any depository acting on behalf of Purchaser to return, in accordance with Rule 14d-11 of the 1934 Act. Subject applicable Law, all tendered Shares to the foregoingregistered holders thereof. Parent shall not, and shall cause Purchaser not to, terminate or withdraw the Offer other than in connection with a termination of this Agreement pursuant to Section 9.01.
(e) The Offer Price shall, subject to applicable withholding of Taxes, be net to the seller in cash, without interest, upon the terms and subject to the conditions of the Offer. On the terms and subject to the conditions set forth in this Agreement and the satisfaction or, Merger Subsidiary to the extent permitted, waiver of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, (i) promptly after the Expiration Date, accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the OfferOffer in compliance with applicable Law (the time of such acceptance, promptly after the final expiration of the Offer, “Acceptance Time”) and (Bii) promptly following the Acceptance Time, pay (or cause the Paying Agent to pay) for such Shares. Parent shall provide, or cause to be provided, to Purchaser (or the Paying Agent as contemplated by Section 3.09) on or prior to the Expiration Date funds necessary to purchase and pay for any and all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn that Purchaser becomes obligated to purchase pursuant to the Offer Offer. The Company agrees that no Shares held by the Company or validly any of its Subsidiaries will be tendered in any Subsequent Offering Period shall be paid net pursuant to the holder thereof in cash, subject to reduction for any applicable withholding TaxesOffer.
(bf) As soon promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that and (ii) cause the Tender Offer Statement to be disseminated to the holders of Shares as and to the extent required by applicable Law. The Tender Offer Statement shall include as exhibits or incorporated by reference thereto, the Offer contain an offer to Purchase purchase and forms of the related letter of transmittal transmittal, related summary advertisement and summary advertisement, if any, in respect of other required ancillary offer documents (the Offer (collectivelySchedule TO and such other documents, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”). Subject to Section 7.02, and (ii) cause the Company hereby consents to the inclusion in the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer DocumentsBoard Recommendation. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Subsidiary Purchaser further agree to take all steps necessary to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before prior to any such document is being filed with the SECSEC or disseminated to holders of Shares, and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary or Purchaser to those such comments and to provide comments on that response (to which reasonable and good faith consideration shall be givengiven by Parent and Purchaser), including by participating with Parent and Merger Subsidiary Purchaser or their counsel in any discussions or meetings with the SEC to the extent not prohibited by the SEC. Parent and Purchaser shall respond as promptly as practicable to any such SEC comments.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoI, as promptly as practicable and in any event within ten days after the date hereof (or such and in any event no later than ten Business Days after the date as the parties may mutually agree in writinghereof), Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Fully-Diluted Shares then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or Offer, imposes conditions to the Offer in addition to those set forth in Annex I, or otherwise amends or modifies the conditions set forth in Annex I Offer in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or Merger Subsidiary, at the Offer is terminated in accordance with its termsrequest of the Company, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions conditions, (y) the reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (yz) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a one or more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act, if, as of the commencement of each such period, there shall not have been validly tendered and not withdrawn pursuant to the 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, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for (A) for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer, promptly Offer after the final expiration of the Offer, and Offer and/or (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had The Merger Agreement provides for the commencement of the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable and reasonably practicable, but in any event within ten days five Business Days after the date hereof (or such later date as of the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning Agreement. The obligation of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation Purchaser to accept for payment payment, and pay for any Company for, Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and certain 22 Table of Contents other conditions that are described in Section 15 — “Certain Conditions of the Offer.” The Purchaser has agreed that, without the prior consent of the Company, no change in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, made which (i) decreases the Minimum Condition may not be waivedoffer price, (ii) no change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases (iii) reduces the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition Condition, (iv) modifies or any of the adds conditions to the Offer set forth in clause (I)(B) Section 15 — “Certain Conditions of the first paragraph Offer” (other than to waive any such condition to the extent permitted by the Merger Agreement) or (v) amends any other term of Annex I shall the Offer in a manner adverse to the holders of the Shares. The Merger Agreement provides that if any of the tender offer conditions are not have been satisfied or waivedwaived by the Purchaser as of any then scheduled expiration time for the Offer, then the Purchaser may, from time to timetime in its sole discretion, until extend the earliest to occur of expiration time for the Offer beyond the latest expiration date that would otherwise be permitted under the Merger Agreement (x) but not beyond the satisfaction or waiver of such conditions and (y) Termination Date). In addition, the End Date, and (2) Purchaser: • may extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the its staff thereof applicable to the Offer or any period required by Applicable LawOffer; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary • may, in its sole discretionand if the Company so requests, the Purchaser shall, provide for a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of the 1934 Exchange Act. Subject to ; • may extend the foregoing, and upon Offer for 10 business days after the terms and subject to latest applicable expiration date otherwise permitted under the conditions Merger Agreement (but not beyond the Termination Date) if at least 90% of the Offer, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and outstanding shares have 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly been tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to if there has been a commencement of a war or other national calamity (including terrorist activity) directly involving the holder thereof in cashUnited States; and • shall, subject to reduction for its right to terminate the Merger Agreement in accordance with its terms, be required to extend the Offer after the latest applicable expiration date of the Offer if any applicable withholding Taxes.
of the events set forth in subsections (a), (b) As soon as practicable on the date of commencement or (d) described in Section 15 — “Certain Conditions of the Offer, Parent ” shall have occurred and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents be continuing unless such conditions could not reasonably be expected to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws satisfied or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made waived by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECTermination Date.
Appears in 1 contract
Sources: Offer to Purchase (Molex Inc)
The Offer. (a) Not later than the first business day after the date of this Agreement, ACQUIROR, Acquisition Subsidiary and OPTA will make a public announcement of the Offer.
(b) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred thator be existing, had Acquisition Subsidiary shall commence, and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer been commencedas promptly as practicable after the date hereof, would give rise but in no event later than five (5) business days after the initial public announcement of Acquisition Subsidiary's intention to a right commence the Offer. The obligation of Acquisition Subsidiary to terminate accept for payment and pay for OPTA Shares tendered pursuant to the Offer pursuant shall be subject only to any the satisfaction of the conditions set forth in Annex I A hereto (unless the failure of any such condition was caused by any breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for OPTA Shares tendered pursuant to the Offer provided that such failure has been waived by OPTA), including the condition that a number of OPTA Shares representing that number of OPTA Shares which would equal more than fifty percent (50%) of the OPTA Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the prior written consent of OPTA, Acquisition Subsidiary will not (i) decrease the Per Share Amount, (ii) reduce the maximum number of OPTA Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer set forth in Annex A hereto, (v) extend the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in the terms or conditions of the Offer which is adverse to the holders of OPTA Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all OPTA Shares validly tendered and not withdrawn.
(c) On the date of commencement of the Offer, ACQUIROR and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the "Schedule TO"), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the forms of related letters of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to OPTA'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. ACQUIROR and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading, and ACQUIROR and Acquisition Subsidiary shall 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 OPTA Shares, in each case as and to the extent required by applicable law. OPTA and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and its counsel with a copy of any written comments or telephonic notification of any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents or this Agreement. In the event within ten that ACQUIROR or Acquisition Subsidiary 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 take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, Eastern Time, on the date that is twenty (20) business days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence Offer is commenced (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act); provided, however, that without the prior written consent of OPTA, Acquisition Subsidiary may (i) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of extend the Offer, immediately prior to if at the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I A shall not have been satisfied or waived, from time for one (1) or more periods (none of which shall exceed ten (10) business days) not to timeexceed thirty (30) business days in the aggregate or, if earlier, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions and are satisfied or waived, (yii) extend the End DateOffer for one (1) or more periods, and not to exceed thirty (230) for any period business days in the aggregate, if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer on one (1) occasion 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, on such expiration date, there shall not have been tendered that number of OPTA Shares which would equal more than ninety percent (90%) of the issued and outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a) or (d) in Annex A. If on the initial scheduled expiration date of the Offer or any extension thereof, any applicable waiting period under any applicable foreign laws regulating competition, antitrust, investment or exchange controls has not expired or terminated prior to the expiration of the Offer (the "Foreign Antitrust Condition"), Acquisition Subsidiary shall, if requested to do so by OPTA, extend the expiration date of the Offer until a date not later than January 15, 2003 and ACQUIROR shall use its best efforts to obtain all permits, authorizations, consents, expiration or termination of waiting periods, and approvals as may be required by Applicable Law; provided any Governmental Entity. In addition, ACQUIROR and Acquisition Subsidiary each agree that Merger Subsidiary shall if all of the conditions set forth in Annex A are not be required to extend satisfied, including the Offer beyond satisfaction of the End Date. Following Minimum Condition, on any expiration date of the Offer, Merger then Acquisition Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoingshall, and upon the terms and subject to the conditions of the OfferACQUIROR shall cause Acquisition Subsidiary to, 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to extend the Offer for one (1) or validly tendered in any Subsequent Offering Period more periods of not less than ten (10) business days if requested to do so by OPTA, provided that OPTA shall be paid net entitled to the holder thereof in cash, subject to reduction for any applicable withholding Taxesmake only three (3) such requests.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with section 8, as promptly as practicable and after the date of this Agreement but in any no event within ten more than seven business days after the date hereof of this Agreement, Purchaser shall (or such later date as the parties may mutually agree in writing), Merger Subsidiary and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer .
(as it may be extended hereunderb) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless including the prior satisfaction of the Minimum Condition and the satisfaction or waiver of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), promptly after the later of (i) the earliest date as of which Purchaser is permitted under applicable Legal Requirements to accept for payment Shares tendered pursuant to the Offer 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 or Purchaser, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest but subject to any applicable Tax withholding) for each Share 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 and set forth in the Minimum Condition and the other Offer 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 of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (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) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, any holder of Shares, (F) change 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 withdrawn prior to the Expiration Date (or any rescheduled Expiration Date), unless this Agreement is terminated in accordance with section 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 Business Days 20 business days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary 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:
(1) 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 which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder, then prior to the then scheduled expiration date, Purchaser shall extend the Offer from time for one or more periods of not more than ten business days each (or such other number of business days as the parties may agree and ending no later than the End Date), in order to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions and (ysubject to the right of Purchaser to waive any Offer Condition (other than the Minimum Condition) the End Date, and in accordance with this Agreement); and
(2) Purchaser shall extend the Offer for any period or periods required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff, provided Purchaser shall extend the staff thereof applicable to then current Expiration Date of the Offer or any to a period required by Applicable Law; provided that Merger Subsidiary shall not ending on the first business day on which the Offer can be accepted under applicable Legal Requirements. Notwithstanding the foregoing, in no event will Purchaser be required to extend the Offer beyond the End Date. Following expiration .
(f) Purchaser may (and the Offer Documents shall reserve the right of the Offer, Merger Subsidiary may, in its sole discretion, Purchaser to) provide for a subsequent offering period (“Subsequent Offering Period”within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 under the Exchange Act of not less than three nor more than 20 business days (for this purpose calculated in accordance with Rule 14d-11 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the 1934 ActOffer. Subject to the foregoing, and upon the terms and subject to the conditions of set forth in this Agreement and the Offer, Merger Subsidiary Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for (A) all Shares validly tendered during such subsequent offering period as promptly as practicable, all Company practicable after any such Shares validly are tendered during such subsequent offering period and not withdrawn in any event in compliance with Rule 14e-1(c) under the Exchange Act.
(g) In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within two business days of such termination), irrevocably and unconditionally terminate the Offer, promptly after the final expiration of the Offer, and (B) all Company Shares validly tendered in shall not acquire any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn shares pursuant to the Offer or validly and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall will include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), advertisement and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable federal securities laws or reasonably requested by laws. Parent or Merger Subsidiary for inclusion in and Purchaser agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Corporations and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.1(h). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser shall respond promptly to those any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(i) Without limiting the generality of Section 9.12, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to provide comments perform, on that response (to which reasonable and good faith consideration shall be given)a timely basis, including by participating with all of Purchaser’s obligations under this Agreement. Parent and Merger Subsidiary or Purchaser shall, and each of Parent and Purchaser shall ensure that all of their counsel in respective Affiliates shall, tender any discussions or meetings with Shares held by them into the SECOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not --------- have been terminated in accordance with Article VIII hereof and so long as none of the events set forth on Annex A hereto (the "Tender Offer Conditions") shall ------- ----------------------- have occurred thatand are continuing, had on the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable and in any event within ten days fifth Business Day after the date hereof (or such later date as the parties may mutually agree in writing)of this Agreement Sub shall, Merger Subsidiary and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer at the Offer Price. Merger Subsidiary’s The obligation of Sub to accept for payment and to pay for any Company Shares tendered in the Offer shall be subject only to the Tender Offer Conditions. Subject to the proviso set forth in the immediately succeeding sentence and the obligations of Parent and Sub to extend the Offer under certain circumstances as set forth in this Section 2.1(a), the Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions. Parent and Sub expressly reserve the right to modify the terms of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date or waive any Tender Offer Condition; provided, however, that neither Parent nor Sub -------- ------- shall, without the prior written consent of the Company, (i) reduce the number of Shares to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer, (v) make any change to the terms of the Offer which is adverse in any manner to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the sixth sentence of this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that there such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a period up to twenty (20) Business Days, but in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall be pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Assuming prior satisfaction or waiver of the Tender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with the terms of the Offer, immediately the Shares which have been validly tendered and not withdrawn at or prior to the scheduled expiration of the Offer (as it may be extended hereunder) Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, a number of Company Shares thatSub may, together with without the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any consent of the Company, extend the Offer for up to ten (10) Business Days in the aggregate notwithstanding that all conditions to the Offer and to make have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any change in of the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writingTender Offer Conditions, other than (ix) the Minimum Condition may not be waivedCondition, (iiy) no change may be made the condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or 8.1(d)(iv) or (z) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A, but only to the extent that changes the form failure of consideration such condition is due to be paid an event making it illegal to purchase Shares pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City timeIf, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the any scheduled or extended expiration date of the Offer, the Minimum Condition or Offer would have expired due to the failure to satisfy (w) any of the conditions to the Tender Offer Conditions set forth in clause (I)(Biii)(a), (iii)(b) or (iii)(c) of Annex A, (x) the first paragraph Tender Offer Condition relating to the expiration of Annex I shall not have been satisfied the waiting period under the HSR Act or waived(y) the Minimum Condition, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer (A) in the case of clause (w) or (x), from time to time, until the earliest to occur of (x) the satisfaction time for one or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall more periods not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary mayexceeding, in its sole discretioneach case, provide a subsequent offering period ten (“Subsequent Offering Period”10) Business Days, but in accordance with Rule 14d-11 of no event later than the 1934 Act. Subject to the 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, Termination Date and (B) all Company Shares validly tendered in any Subsequent Offering Periodthe case of clause (y), promptly after for one or more periods not exceeding, in the aggregate, twenty (20) Business Days, but in no event later than the Termination Date, unless Parent, in each case, reasonably believes at such Company Shares are validly tenderedtime that such Tender Offer Condition is not capable of being satisfied. The Offer Price payable In addition, notwithstanding anything in respect of each Company Share validly tendered and not withdrawn pursuant this Section 2.1(a) to the Offer or validly tendered in any Subsequent Offering Period contrary, if the Company shall be paid net have affirmatively announced to the holder thereof in cashstockholders of the Company a neutral position with respect to an Acquisition Proposal, subject Parent shall, at the request of the Company, cause Sub to reduction for any applicable withholding Taxesextend the expiration date of the Offer to ten (10) Business Days after the date of initial announcement of such neutral position.
(b) As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Sub shall (i) file with the SEC Commission a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”") that with respect to the Offer. The Schedule TO shall include contain ----------- (included as exhibits an exhibit) or incorporated shall incorporate by reference thereto, an offer to purchase (the "Offer to Purchase Purchase") and forms of the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, if anyas well as all other information and ----------- exhibits required by law (which Schedule TO, in respect Offer to Purchase, Letter of the Offer (collectivelyTransmittal, summary advertisement and such other information and exhibits, together with any supplements or amendments or supplements thereto, are referred to herein collectively as the “"Offer Documents”"), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company and its counsel shall promptly furnish be --------------- given reasonable opportunity to Parent review and Merger Subsidiary comment upon the Schedule TO prior to its filing with the Commission. The Schedule TO shall comply in writing all information concerning material respects with the Company that may be required by provisions of applicable federal securities laws and, on the date filed with the Commission and the date first published, sent or reasonably requested given to the holders of the Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by Parent or Merger Subsidiary Sub with respect to any information supplied by the Company in writing for inclusion in the Schedule TO or the Offer DocumentsTO. Each of ParentParent and Sub, Merger Subsidiary on the one hand, and the Company Company, on the other hand, agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall be, or have become become, false or misleading in any material respect. , and Parent and Merger Subsidiary Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC Commission and the other Offer Documents as so corrected to be disseminated to holders of Company the Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Each of Parent and Sub agrees to provide the Company and its counsel shall be given a reasonable opportunity with information with respect to review any oral comments and comment on copies of any written comments Parent and Sub or their counsel may receive from the Schedule TO and Commission or its staff with respect to the Offer Documents each time before any promptly after the receipt of such document is filed with the SEC, comments and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable an opportunity to participate in the response of Parent and Merger Subsidiary or Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given)such comments, including by participating with Parent and Merger Subsidiary Sub or their counsel in any discussions or meetings with the SECCommission or its staff.
Appears in 1 contract
Sources: Merger Agreement (Royal Ahold)
The Offer. (a) Provided that nothing this Agreement shall not --------- have been terminated in accordance with Article VIII hereof and so long as none of the events set forth on Annex A hereto (the "Tender Offer Conditions") shall ------- ----------------------- have occurred thatand are continuing, had on the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable and in any event within ten days fifth Business Day after the date hereof (or such later date as the parties may mutually agree in writing)of this Agreement Sub shall, Merger Subsidiary and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer at the Offer Price. Merger Subsidiary’s The obligation of Sub to accept for payment and to pay for any Company Shares tendered in the Offer shall be subject only to the Tender Offer Conditions. Subject to the proviso set forth in the immediately succeeding sentence and the obligations of Parent and Sub to extend the Offer under certain circumstances as set forth in this Section 2.1(a), the Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions. Parent and Sub expressly reserve the right to modify the terms of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date or waive any Tender Offer Condition; provided, however, that neither Parent nor Sub -------- ------- shall, without the prior written consent of the Company, (i) reduce the number of Shares to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer, (v) make any change to the terms of the Offer which is adverse in any manner to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the sixth sentence of this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that there such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a period up to twenty (20) Business Days, but in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall be pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Assuming prior satisfaction or waiver of the Tender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with the terms of the Offer, immediately the Shares which have been validly tendered and not withdrawn at or prior to the scheduled expiration of the Offer (as it may be extended hereunder) Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, a number of Company Shares thatSub may, together with without the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any consent of the Company, extend the Offer for up to ten (10) Business Days in the aggregate notwithstanding that all conditions to the Offer and to make have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any change in of the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writingTender Offer Conditions, other than (ix) the Minimum Condition may not be waivedCondition, (iiy) no change may be made the condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or 8.1(d)(iv) or (z) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A, but only to the extent that changes the form failure of consideration such condition is due to be paid an event making it illegal to purchase Shares pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City timeIf, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the any scheduled or extended expiration date of the Offer, the Minimum Condition or Offer would have expired due to the failure to satisfy (w) any of the conditions to the Tender Offer Conditions set forth in clause (I)(Biii)(a), (iii)(b) or (iii) (c) of Annex A, (x) the first paragraph Tender Offer Condition relating to the expiration of Annex I shall not have been satisfied the waiting period under the HSR Act or waived(y) the Minimum Condition, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer (A) in the case of clause (w) or (x), from time to time, until the earliest to occur of (x) the satisfaction time for one or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall more periods not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary mayexceeding, in its sole discretioneach case, provide a subsequent offering period ten (“Subsequent Offering Period”10) Business Days, but in accordance with Rule 14d-11 of no event later than the 1934 Act. Subject to the 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, Termination Date and (B) all Company Shares validly tendered in any Subsequent Offering Periodthe case of clause (y), promptly after for one or more periods not exceeding, in the aggregate, twenty (20) Business Days, but in no event later than the Termination Date, unless Parent, in each case, reasonably believes at such Company Shares are validly tenderedtime that such Tender Offer Condition is not capable of being satisfied. The Offer Price payable In addition, notwithstanding anything in respect of each Company Share validly tendered and not withdrawn pursuant this Section 2.1(a) to the Offer or validly tendered in any Subsequent Offering Period contrary, if the Company shall be paid net have affirmatively announced to the holder thereof in cashstockholders of the Company a neutral position with respect to an Acquisition Proposal, subject Parent shall, at the request of the Company, cause Sub to reduction for any applicable withholding Taxesextend the expiration date of the Offer to ten (10) Business Days after the date of initial announcement of such neutral position.
(b) As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary Sub shall (i) file with the SEC Commission a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”") that with respect to the Offer. The Schedule TO shall include contain ----------- (included as exhibits an exhibit) or incorporated shall incorporate by reference thereto, an offer to purchase (the "Offer to Purchase Purchase") and forms of the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, if anyas well as all other information and ----------- exhibits required by law (which Schedule TO, in respect Offer to Purchase, Letter of the Offer (collectivelyTransmittal, summary advertisement and such other information and exhibits, together with any supplements or amendments or supplements thereto, are referred to herein collectively as the “"Offer Documents”"), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company and its counsel shall promptly furnish be --------------- given reasonable opportunity to Parent review and Merger Subsidiary comment upon the Schedule TO prior to its filing with the Commission. The Schedule TO shall comply in writing all information concerning material respects with the Company that may be required by provisions of applicable federal securities laws and, on the date filed with the Commission and the date first published, sent or reasonably requested given to the holders of the Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by Parent or Merger Subsidiary Sub with respect to any information supplied by the Company in writing for inclusion in the Schedule TO or the Offer DocumentsTO. Each of ParentParent and Sub, Merger Subsidiary on the one hand, and the Company Company, on the other hand, agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall be, or have become become, false or misleading in any material respect. , and Parent and Merger Subsidiary Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC Commission and the other Offer Documents as so corrected to be disseminated to holders of Company the Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Each of Parent and Sub agrees to provide the Company and its counsel shall be given a reasonable opportunity with information with respect to review any oral comments and comment on copies of any written comments Parent and Sub or their counsel may receive from the Schedule TO and Commission or its staff with respect to the Offer Documents each time before any promptly after the receipt of such document is filed with the SEC, comments and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable an opportunity to participate in the response of Parent and Merger Subsidiary or Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given)such comments, including by participating with Parent and Merger Subsidiary Sub or their counsel in any discussions or meetings with the SECCommission or its staff.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 8, as promptly as practicable and in any event within ten days after the date hereof of this Agreement but in no event more than ten Business Days after the date of this Agreement, Sub shall (or such later date as the parties may mutually agree in writing), Merger Subsidiary and Parent shall cause Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in .
(b) In accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless and subject only to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Annex I (collectively, the “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Sub shall (and Parent shall cause Sub to), at or as promptly as practicable following the Expiration Time, irrevocably accept for purchase (the time of acceptance for purchase, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer is extended Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Sub shall not, and Parent shall cause Sub not to, (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions (i) in a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (ii) in any other circumstance, without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 1.1(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Section 8.
(d) The Offer shall expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to the parties’ respective rights to terminate this Agreement pursuant to Section 8, Sub shall, and Parent shall cause Sub to, extend the Offer from time to time as follows:
(i) If, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Sub shall be required to, and Parent shall be required to cause Sub to, extend the Offer on no more than two occasions in consecutive increments of five Business Days each (each such increment to end at 5:00 p.m., New York City time, on the date last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that Sub shall not be required to extend the Offer is commenced. Unless to a date later than the Termination Date unless the breach by Parent or Sub of any of their representations and warranties set forth in this Agreement or their failure to perform any of their obligations under this Agreement has been the principal cause of or resulted in the failure of the Offer is terminated in accordance with its terms, Merger Subsidiary Acceptance Time to occur by the Termination Date;
(ii) Sub shall extend the Offer from time to time (1) if, at for the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any 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 LLC (the “NASDAQ”) or its staff; and
(iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any action in accordance with Section 9.9 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the court presiding over such action, as the case may be. Sub shall not, and Parent shall not permit Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.1(e).
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required Acceptance Time, and such adjustment to extend the Offer beyond Price shall provide to the End Date. Following expiration holders of shares of Company Common Stock the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period same economic effect as contemplated by this Agreement prior to such action.
(“Subsequent Offering Period”g) In the event that this Agreement is terminated in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoingSection 8, Sub shall (and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Parent shall accept for payment and pay for (Acause Sub to) as promptly as practicable, all Company Shares validly tendered practicable (and not withdrawn pursuant to the Offer, promptly after the final expiration in any event within 24 hours of such termination) irrevocably and unconditionally terminate the Offer, and (B) all shall not acquire any shares of Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or validly Sub to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net shares of Company Common Stock to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of (the Offer (collectivelySchedule TO, together with any amendments or supplements theretoall documents included therein pursuant to which the Offer will be made, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer DocumentsCommon Stock. Each of Parent, Merger Subsidiary Sub and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of shares of Company SharesCommon Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Sub or Parent’s legal counsel any information concerning the Company and the Company’s subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, (including a summary of any oral comments) that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, such comments. Each of Parent and (B) Sub shall give the Company and its counsel a reasonable opportunity to participate in the response to any comments of Parent the SEC or its staff with respect to the Offer Documents and Merger Subsidiary shall respond promptly to those comments any such comments.
(i) Parent, Sub and the Exchange Agent with respect to provide comments on that response (to which reasonable and good faith consideration the Offer shall be givenentitled to deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), including by participating with Parent or under any provision of state, local or foreign Tax Law. To the extent amounts are so withheld and Merger Subsidiary or their counsel paid over to the appropriate Governmental Authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in any discussions or meetings with the SECrespect of which such deduction and withholding was made.
Appears in 1 contract
The Offer. (a) Provided The Merger Agreement provides that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable and in any event within no later than ten business days after the date hereof (or such later date as public announcement of the parties may mutually agree in writing)Merger Agreement, Merger Subsidiary shall Parent and the Purchaser will commence (within the meaning Offer and that the obligation of Rule 14d-2 under Parent and the ▇▇▇▇ ▇▇▇) Purchaser to consummate the Offer. Merger Subsidiary’s obligation Offer and to accept for payment and to pay for any Company Shares validly tendered in pursuant to the Offer and not withdrawn shall be subject to the condition that there shall be validly tendered in accordance with only those conditions set forth therein. Subject to the terms of the OfferMerger Agreement, immediately prior to the scheduled expiration applicable rules and regulations of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer Commission and to make any change in applicable law, the Purchaser may amend or modify the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writingPurchaser shall not, without the prior written consent of the Company, (i) change the Minimum Condition may not be waivedCondition, (ii) no decrease the Offer Consideration, (iii) change may be made that changes the form of consideration payable in the Offer (other than by adding consideration), (iv) reduce the maximum number of shares to be paid pursuant to purchased in the Offer, decreases (v) amend the terms or the conditions of the Offer Price in a manner which is adverse to the Holders, or the number of Company Shares sought in the Offer or which imposes conditions or terms to the Offer in addition to those set forth in Annex Ithe Merger Agreement, or amends (vi) extend the Expiration Date beyond twenty (20) business days after commencement of the Offer, except (A) as required by applicable law, (B) that Purchaser may extend the Offer for up to ten (10) business days in the aggregate, notwithstanding that all conditions set forth in Annex I in any manner materially adverse Section 14--"Conditions of the Offer" are satisfied on the Expiration Date, if, immediately prior to the holders Expiration Date, less than 90% of Company Shares, the Shares have been tendered and not withdrawn or (iiiC) the Offer may not be extended except as that if any condition set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date 14--"Conditions of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall " has not have been satisfied or waived, from time to timethe Purchaser may extend the Expiration Date for one or more periods, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Datebut in no event later than October 31, and (2) for any period required by any rule2002; provided, regulationhowever, interpretation or position of the SEC or the staff thereof applicable to that the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not may be required extended in connection with an increase in the consideration to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn be paid pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net so as to the holder thereof in cash, subject to reduction for any comply with applicable withholding Taxes.
(b) As soon as practicable on the date of commencement rules and regulations of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECCommission.
Appears in 1 contract
The Offer. (a) Provided that nothing none of the events set forth on Annex A hereto shall have occurred thatand be continuing, had Purchaser shall commence the Offer been commenced, would give rise as promptly as reasonably practicable after the date hereof and in no event more than ten business days after the date hereof. The obligation of Purchaser to a right accept for payment Shares tendered pursuant to terminate the Offer pursuant are subject to any the satisfaction of each of the conditions set forth in on Annex I A hereto, 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 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided PROVIDED, HOWEVER, that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes (i) decreases the form price per Share payable in the Offer (ii) reduces the maximum number of consideration Shares to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought purchased in the Offer or that imposes conditions to the Offer in addition to those set forth in on Annex I, A hereto or amends the conditions set forth in Annex I in 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 otherwise changes the terms and conditions of this Agreement, unless the Offer is extended in accordance with a manner adverse to the terms Public Holders. Notwithstanding the foregoing, Purchaser may, without the consent of this Agreementthe Company, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1i) for a period of not more than ten business days beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Purchaser's obligation to accept Shares for payment, shall not have been be satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2ii) 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 any (iii) for an aggregate period required by Applicable Law; provided that Merger Subsidiary shall of not be required to extend the Offer more than 10 business days beyond the End Date. Following expiration latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer, Merger Subsidiary maytogether with the Shares owned by Purchaser or its affiliates equals 80% or more, in its sole discretionbut less than 90%, provide of outstanding Shares on a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Actfully diluted basis. Subject In addition to the foregoing, Parent and Purchaser may provide for a "subsequent offering period" to the extent provided in Rule 14d-11 under the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"). The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer, Merger Subsidiary . Purchaser shall accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If Parent or Purchaser are unable to consummate the Offer on the scheduled expiration date due to the failure of any of the conditions set forth in Annex A to be satisfied or waived, promptly after Purchaser shall extend the final expiration Offer in increments of not less than five business days (at the discretion of Purchaser) until such date as is 45 days from the date of the initial commencement of the Offer; PROVIDED, and (B) all Company Shares validly tendered HOWEVER, that Purchaser shall not be required to extend the Offer if any such condition is, in any Subsequent Offering Periodthe reasonable judgment of the Purchaser, promptly after such Company Shares are validly tendered. The Offer Price payable in respect incapable of each Company Share validly tendered and not withdrawn pursuant being satisfied prior to the Offer or validly tendered expiration of such 45-day period. If the payment equal to the Per Share Amount in any Subsequent Offering Period cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid net all transfer and other taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the holder thereof in cash, subject to reduction for any applicable withholding Taxessatisfaction of Purchaser that such taxes either have been paid or are not applicable.
(b) As soon promptly as reasonably practicable on the date of commencement of the Offer, Purchaser and Parent and Merger Subsidiary shall (i) file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “"SCHEDULE TO") and (ii) together with the Company, a Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "SCHEDULE 13E-3") with respect to the Offer which shall be filed as a part of the Schedule TO”) that . The Schedule TO and the Schedule 13E-3 shall include as exhibits contain or incorporated shall incorporate by reference theretoan offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Schedule 13E-3, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectivelysuch other documents, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"OFFER DOCUMENTS"). The Offer Documents”)Documents shall comply in all material respects with the provisions of applicable federal securities laws and Parent and Purchaser hereby represent and warrant to the Company that, on the date filed with the SEC and (ii) cause on the date first published, sent or given to the Public Holders, 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 Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentscircumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree Purchaser further agrees to take all steps necessary to cause the Schedule TO as so corrected Offer Documents to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents that shall have become false or misleading, and its counsel shall be given a reasonable opportunity Parent and Purchaser further agree to review and comment on take all steps necessary to cause the Schedule TO and the Offer Documents each time before any such document is Schedule 13E-3, as so corrected, to be filed with the SEC, and Parent the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and Merger Subsidiary shall give reasonable and good faith consideration to any comments made the extent required by the Company and its counselapplicable federal securities laws. Parent and Merger Subsidiary Purchaser shall give the Special Committee and its counsel the opportunity to review the Offer Documents, including all amendments and supplements thereto, prior to their being filed with the SEC and shall give the Special Committee and its counsel the opportunity to review all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. In addition, Parent and Purchaser shall provide the Company Special Committee and its counsel with (A) any comments or other communications, whether written or oral, communications that Parent, Merger Subsidiary Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communicationscommunications and shall consult with the Special Committee and its counsel as to all material communications with the SEC and its staff, including any material meetings and telephone conferences relating to the Offer Documents.
(Bc) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary Purchaser shall provide or cause to those comments and be provided to provide comments the Paying Agent (as defined in Section 3.08(a)) on or prior to the expiration of the Offer funds necessary to make payment for any Publicly Held shares that response (Purchaser becomes obligated to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with purchase pursuant to the SECOffer.
Appears in 1 contract
The Offer. (ai) Provided Subject to the terms and conditions of this Agreement (and provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I hereto, 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 writingaccordance with ARTICLE VIII), Merger Subsidiary on July 13, 2023, Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase for cash any (subject to the Minimum Tender Condition) and all Shares at the Offer Price; provided that if, at the time Purchaser intends to commence the Offer, the Company is not prepared to file with the U.S. Securities and Exchange Commission (the “SEC”) and to disseminate to holders of Shares the Schedule 14D-9, Purchaser may, but until such time as the Company is so prepared, shall not be obligated to, commence the Offer. Merger Subsidiary’s The obligation of Purchaser to accept for payment and to pay for any Company Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject only to the condition that there shall be validly tendered satisfaction or waiver (to the extent permitted hereunder) of those conditions set forth in Annex I (the “Offer Conditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire at one (1) minute after 11:59 p.m. Eastern Time on the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with Section 1.1(a)(ii), the “Expiration Date”). Purchaser expressly reserves the right at any time or from time to time, in its sole discretion, to waive any Offer Condition or modify or amend the terms of the Offer, immediately in whole or in part, including the Offer Price, except that, without the prior to the scheduled expiration written consent of the Offer Company, Purchaser may not (as it may be extended hereunderA) and not withdrawn, a number of Company Shares that, together with decrease the Company Shares then directly Closing Amount or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in amend the terms of the CVRs or conditions to the Offer; provided that unless otherwise provided CVR Agreement except as required or permitted by this Agreement or previously approved by the Company in writingSection 1.1(e), (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of the consideration to be paid payable in the Offer, (C) decrease the maximum number of Shares sought pursuant to the Offer, decreases (D) amend or waive the Offer Price or the number of Company Shares sought in the Offer or imposes conditions Minimum Tender Condition, (E) add to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in on Annex I, (F) modify the conditions set forth on Annex I in any a manner materially adverse to the holders of Company Shares, and (iiiG) extend the Expiration Date of the Offer may not be extended except as set forth required or permitted by Section 1.1(a)(ii) or (H) make any other change in this Section 2.01(a). the terms or conditions of the Offer that is adverse to any holders of Shares.
(ii) Subject to the terms and conditions of this Agreement, unless Agreement and to the satisfaction or waiver (to the extent permitted hereunder) by Purchaser of the Offer is extended in accordance with Conditions as of any scheduled Expiration Date, Purchaser shall accept for purchase any and all Shares validly tendered and not validly withdrawn pursuant to the terms Offer as promptly as practicable after such scheduled Expiration Date (the date and time of this Agreementacceptance for payment, the Offer “Acceptance Time”). The Purchaser shall expire at 5:00 p.m., New York City time, on the date that is 21 promptly (and in any event within three (3) Business Days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act)) after the date that Acceptance Time pay, or cause the Paying Agent to pay, for all Shares validly tendered and not validly withdrawn pursuant to the Offer. Purchaser shall not permit holders of Shares to tender Shares pursuant to the Offer is commencedpursuant to guaranteed delivery procedures that have not been “received” (as defined by Section 251(h)(6) of the DGCL). Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary Purchaser shall (A) extend the Offer from time to time for one (1) if, or more periods of time of up to ten (10) Business Days per extension if at the any scheduled or extended expiration date of the Offer, Expiration Date any Offer Condition (other than the Minimum Condition or any of the conditions Tender Condition) is not satisfied and has not been waived (to the Offer set forth in clause (I)(Bextent permitted hereunder) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (yB) extend the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC SEC, the staff thereof, or the staff thereof Nasdaq Global Select Market (“Nasdaq”) applicable to the Offer or any period required by Applicable LawOffer; provided that Merger Subsidiary shall Purchaser is not be required to extend the Offer beyond the End Outside Date. Following expiration In addition, if at the otherwise scheduled Expiration Date, each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Purchaser may elect to (and if so requested by the Company, Purchaser shall) extend the Offer for one (1) or more consecutive increments of such duration as requested by the Company (or if not so requested by the Company, as determined by Purchaser), but not more than ten (10) Business Days each (or for such longer period as may be agreed to by Parent and the Company); provided that the Company shall not request Purchaser to, and Purchaser shall not be required to, extend the Offer pursuant to this sentence on more than two (2) occasions in consecutive periods of ten (10) Business Days each (or such longer or shorter period as the Company and Purchaser may agree in writing); provided, further, that Purchaser shall not without the prior written consent of the OfferCompany, Merger Subsidiary mayand shall not be required to, in extend the Offer beyond the Outside Date. The Company shall register (and shall instruct its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”transfer agent to register) in accordance with Rule 14d-11 the transfer of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept Shares accepted for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly by Purchaser effective immediately after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 TaxesAcceptance Time.
(b) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together collectively with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) with respect to the Offer that shall include includes as exhibits or incorporated by reference thereto, the Offer offer to Purchase purchase and forms of related letter of transmittal and summary advertisement, if any, in respect of advertisement and other ancillary documents and instruments pursuant to which the Offer will be made (collectively, together collectively with any supplements or amendments or supplements thereto, the “Offer Documents”)) and shall disseminate the Offer Documents to holders of Shares, in each case, as and to the extent required by applicable federal securities Laws. The Company shall furnish promptly to Parent and Purchaser all information reasonably requested by ▇▇▇▇▇▇ and Purchaser concerning the Company and required by applicable federal securities Laws to be set forth in the Offer Documents. Except from and after a Change of Board Recommendation, Parent and Purchaser shall (i) afford the Company a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC, (ii) promptly provide the Company and its counsel with a copy of any written comments (and a description of any oral comments) received by Parent, Purchaser or their counsel from the SEC or its staff with respect to the Offer Documents, (iii) consult with the Company regarding any such comments prior to responding thereto and (iv) promptly provide the Company with copies of any written responses to any such comments. Parent and Purchaser shall cause the Offer Documents filed by either Parent or Purchaser with the SEC to comply in all material respects with the requirements of applicable Law and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, not to 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 Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company circumstances under which they were made, not misleading, except that may be required by applicable securities laws or reasonably requested no covenant is made by Parent or Merger Subsidiary Purchaser with respect to information supplied by or on behalf of the Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and Offer Documents as well as any material omissions from the Offer Documents if and to the extent that it has become aware that such information shall have has become false or misleading in any material respect. Parent and Merger Subsidiary agree to Purchaser shall take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be promptly filed with the SEC and disseminated to holders of Company Shares, in each case case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel Laws.
(c) Parent shall provide or cause to be given provided to Purchaser on a reasonable opportunity timely basis the funds necessary to review and comment on purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Schedule TO and Offer.
(d) Purchaser shall not terminate the Offer Documents each time before prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to ARTICLE VIII. If this Agreement is terminated pursuant to ARTICLE VIII, Purchaser shall terminate the Offer promptly (and in any event within one (1) Business Day of such document is filed with the SECtermination of this Agreement pursuant to ARTICLE VIII), and Parent Purchaser shall not acquire any Shares pursuant to the Offer. If the Offer is terminated by Purchaser, or if this Agreement is terminated pursuant to ARTICLE VIII prior to the acquisition of Shares in the Offer, Purchaser shall promptly (and in any event within two (2) Business Days of such termination) return, and shall cause any depositary or other agent acting on behalf of Purchaser to return, in accordance with applicable Law, all Shares tendered into the Offer to the registered holders thereof.
(e) The (i) Offer Price and (ii) Merger Subsidiary shall give reasonable Consideration will be adjusted appropriately to reflect any reclassification, recapitalization, division or subdivision of shares, consolidation of shares, stock split (including a reverse stock split), or combination, exchange, or readjustment of shares, or any stock dividend or stock distribution occurring (or for which a record date is established) or other similar transaction after the date of this Agreement and good faith consideration prior to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff payment by Purchaser for Shares validly tendered and not validly withdrawn in connection with the Offer (with respect to the Schedule TO Offer Price) or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity the Effective Time (with respect to participate in the response of Merger Consideration).
(f) Parent shall, and Merger Subsidiary shall cause the Rights Agent to, at or prior to those comments the Acceptance Time, duly authorize, execute and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with deliver the SECCVR Agreement.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 8, as promptly as practicable and after the date of this Agreement but in any no event within more than ten (10) business days after the date hereof of this Agreement, Purchaser shall (or such later date as the parties may mutually agree in writing), Merger Subsidiary and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer .
(as it may be extended hereunderb) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser 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 to the extent waivable in accordance with the terms of Section 1.1(c), by Purchaser, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms, and accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser 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) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably would be expected to adversely affect, any holder of Shares, (F) change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date), unless this Agreement is terminated in accordance with Section 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 Business Days twenty (20) business days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary 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:
(1) 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 which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder, then prior to the then scheduled expiration date Purchaser shall extend the Offer from time 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 End Date in order to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions and (ysubject to the right of Purchaser to waive any Offer Condition (other than the Minimum Condition) the End Date, and in accordance with this Agreement); and
(2) Purchaser shall extend the Offer for any period or periods required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff, provided Purchaser shall extend the staff thereof applicable to then current Expiration Date of the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend until the first business day on which the Offer beyond can be accepted under applicable Legal Requirements.
(f) Purchaser may (and the End Date. Following expiration Offer Documents shall reserve the right of the Offer, Merger Subsidiary may, in its sole discretion, Purchaser to) provide for a subsequent offering period (“Subsequent Offering Period”within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 under the Exchange Act of not less than three (3) nor more than twenty (20) business days (for this purpose calculated in accordance with Rule 14d-11 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the 1934 ActOffer. Subject to the foregoing, and upon the terms and subject to the conditions of set forth in this Agreement and the Offer, Merger Subsidiary Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for (A) all Shares validly tendered during such subsequent offering period as promptly as practicable, all Company practicable after any such Shares validly are tendered and not withdrawn in any event in compliance with Rule 14e-1(c) under the Exchange Act.
(g) In the event that this Agreement is terminated pursuant to the Offerterms hereof, Purchaser shall (and Parent shall cause Purchaser to) promptly after the final expiration (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, and (B) all Company shall not acquire any Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company Purchaser agree that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.1(h) including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser shall respond promptly to those any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(i) Without limiting the generality of Section 9.12, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to provide comments perform, on that response (to which reasonable and good faith consideration shall be given)a timely basis, including by participating with all of Purchaser’s obligations under this Agreement. Parent and Merger Subsidiary or Purchaser shall, and each of Parent and Purchaser shall ensure that all of their counsel in respective Affiliates shall, tender any discussions or meetings with Shares held by them into the SECOffer.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
The Offer. (a) Provided Subject to the terms and conditions of this Agreement, and provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 10.1 and (ii) the Company shall have occurred that, had timely complied in all material respects with its obligations to provide the Offer been commenced, would give rise required information to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoMerger Sub under Section 2.1(f) and Section 2.2, as promptly as practicable and in any event within ten days after the date hereof (or such but in no event later than fifteen (15) Business Days after the date as the parties may mutually agree in writingof this Agreement), Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer to purchase all of the outstanding Shares (other than Shares to be canceled pursuant to Section 3.2(b) or Section 3.4 (collectively, the “Excluded Shares”)), at a price per Share equal to the Offer Price, in cash, without interest. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (the “Offer Conditions”). The date on which ▇▇▇▇▇▇ Sub commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Subsidiary Sub expressly reserves the right to, at any time and to the extent permitted by applicable Law, (x) increase the Offer Price and/or (y) waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided that unless otherwise provided by that, notwithstanding anything to the contrary contained in this Agreement or previously approved by Agreement, without the Company in writingprior written consent of the Company, Merger Sub and Parent shall not:
(i) waive or change the Minimum Condition may not be waived(as defined in Annex I) or the conditions set forth in clauses B, C and H of Annex I;
(ii) no decrease the Offer Price (other than an adjustment made pursuant to Section 3.6);
(iii) change may be made that changes the form of consideration to be paid pursuant in the Offer;
(iv) decrease the number of Shares (or narrow or otherwise diminish or reduce the classes of Shares) subject to the Offer, decreases ;
(v) extend or otherwise change the expiration date of the Offer Price except as otherwise required or expressly permitted herein (provided that, notwithstanding anything herein to the number of Company Shares sought in contrary, Merger Sub shall be permitted to extend the Offer at least until the Inside Date);
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth a manner that adversely affects any holder of the Shares (in Annex I, or amends the conditions set forth in Annex I in their capacity as such); or
(vii) provide 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 this Agreement, unless the Offer is extended “subsequent offering period” in accordance with Rule 14d-11 of the terms of this Agreement, the Exchange Act.
(c) The Offer shall expire at 5:00 one minute after 11:59 p.m., New York City Eastern time, on the date that is 21 twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) from the Offer Commencement Date (such time, the “Expiration Time”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this purpose calculated Section 2.1 (in which event the term “Expiration Time” shall mean the time and date that the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless (x) this Agreement shall have been terminated in accordance with Section 14d-1(g)(310.1 or (y) under Merger Sub receives the ▇▇▇▇ ▇▇▇prior written consent of the Company:
(i) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, the Offer Document or any period otherwise required by Applicable Lawthe rules and regulations of Nasdaq or applicable Law (including in order to comply with Rule 14e-1(b) promulgated under the Exchange Act in respect of the Offer Price);
(ii) if, at the initial Expiration Time or any subsequent time as of which the Offer is scheduled to expire, any of the Offer Conditions (other than the Minimum Condition and any such conditions that by their nature are to be satisfied at the expiration of the Offer (provided such conditions would be capable of being satisfied or validly waived were the expiration of the Offer to occur at such time)) have not been satisfied or waived (to the extent waivable by Merger Sub or Parent), then Merger Sub shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Time or such subsequent Expiration Time for successive extension periods (the length of each such individual extension period not to exceed ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)); and
(iii) if, at the initial Expiration Time or any subsequent time as of which the Offer is scheduled to expire, each of the Offer Conditions (other than the Minimum Condition, and other than any such conditions that by their nature are to be satisfied at the expiration of the Offer (provided such conditions would be capable of being satisfied or validly waived were the expiration of the Offer to occur at such time)) has been satisfied or waived (to the extent waivable by Merger Sub or Parent) and the Minimum Condition has not been satisfied, then Merger Sub may, and, at the request in writing of the Company, Merger Sub shall, extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Time or such subsequent Expiration Time for successive extension periods (the length of each such individual extension period not to exceed ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)); provided, however, that in no event shall Merger Subsidiary Sub be required to extend the expiration of the Offer pursuant to this clause (iii) for more than twenty-five (25) Business Days in the aggregate; provided, however, that notwithstanding the foregoing clauses (i), (ii) and (iii), in no event shall not Merger Sub be required to extend the Offer beyond the End Dateearlier of (x) the Outside Date or (y) the termination of this Agreement in accordance with Section 10.1. Following expiration In no event shall Merger Sub be permitted to terminate the Offer prior to the Expiration Time, unless this Agreement has been previously terminated. In the event this Agreement is terminated pursuant to Section 10.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one (1) Business Day of such termination), irrevocably and unconditionally terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub prior to the acceptance for payment and payment for Shares tendered in the Offer, Merger Subsidiary maySub shall promptly return (or cause to be returned), in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject applicable Law, all tendered Shares to the foregoingregistered holders thereof. Notwithstanding anything herein to the contrary, ▇▇▇▇▇▇ and upon Merger Sub may voluntarily extend the Offer at least until the Inside Date, subject to compliance with the third sentence of this Section 2.1(d).
(e) Upon the terms and subject to the conditions set forth in this Agreement and to the satisfaction or waiver of the OfferOffer Conditions, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for for, promptly (Awithin the meaning of Rule 14e-1(c) of the Exchange Act) after the expiration of the Offer (as promptly as practicableit may be extended in accordance with this Agreement), 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 Company 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 cashtime at which Shares are first accepted for payment under the Offer, subject to reduction for any applicable withholding Taxesthe “Acceptance Time”).
(bf) As soon as practicable on On the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including all exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms a form of letter of transmittal and summary advertisement, if any, in respect of the Offer advertisement (and any other appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the appropriate Offer Documents to be disseminated to holders of Company SharesShares to the extent required by applicable federal securities laws or other applicable Law. Parent and ▇▇▇▇▇▇ Sub agree that they shall cause the Offer Documents to comply in all material respects with the Exchange Act and all other applicable Laws. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all Sub the information concerning relating to the Company that may be Company, the Company’s Subsidiaries and the Company’s Stockholders required by the Exchange Act or other applicable securities laws Laws or reasonably requested by Parent or Merger Subsidiary for inclusion Sub to be set forth in the Schedule TO Offer Document, and to enable Parent and Merger Sub to comply with their obligations of this Section 2.1(f); provided, however, that no covenant is made by Parent or Merger Sub regarding the inclusion of any information regarding the Company, the Company’s Subsidiaries or the Company’s Stockholders in the Offer DocumentsDocument. Parent will furnish to the Company the information relating to Parent or Merger Sub required by the Exchange Act or other applicable Laws or reasonably requested by Parent or Merger Sub to be set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”). Each of Parent, Merger Subsidiary Sub and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law, or to correct any material omissions therefrom; provided, however, that no covenant is made by Parent, or Merger Sub with respect to the information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Offer Document. Parent and Merger Subsidiary agree to take all steps necessary Sub shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and case, to the extent required by applicable U.S. federal securities lawslaws or the rules or regulations of Nasdaq, in each case, as soon as reasonably practicable. The Except after a Company Board Recommendation Change or in response to any disclosures made by the Company in compliance with Section 7.3, the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counselcounsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Each of Parent and Merger Subsidiary Sub shall (A) respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (B) except after a Company Board Recommendation Change or in response to any disclosures made by the Company in compliance with Section 7.3, provide the Company and its counsel with (Ax) any written comments or other written communications (and a summary of all substantive oral comments or communications, whether written or oral, ) that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, communications and (By) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary Sub to those comments and to provide comments to Parent and Merger Sub on that response as soon as reasonably practicable (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary Sub or their counsel in any discussions or meetings with the SEC. Parent, Merger Sub and the Company will each comply in all material respects with applicable Law and the rules and regulations of Nasdaq in connection with the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article Eight hereof and none of the conditions events set forth in Annex I heretohereto (the "Tender Offer Conditions") shall have occurred, as promptly as practicable and reasonably practicable, but in any no event within ten days after later than May 15, 2000, Parent shall cause the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall Purchaser to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder), the "Exchange Act") an offer to purchase all outstanding Shares at the Offer Price, shall, upon commencement of the Offer but after affording the Company a reasonable opportunity to review and comment thereon, file Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "SEC") and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the "Offer Documents") and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. Merger Subsidiary’s The obligation of the Purchaser to accept for payment and or pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions pursuant to the Offer and to make any change in the terms of or conditions will be subject only to the Offer; provided that unless otherwise provided by this Agreement satisfaction or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form waiver of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I hereto.
(b) Without the prior written consent of the Company, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner materially adverse to the holders of Company Common 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the The Offer shall expire at 5:00 p.m., New York City time, on remain open until the date that is 21 Business Days 20 business days (for this purpose calculated as such term is defined in accordance with Section 14d-1(g)(3Rule 14d-1(c)(6) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that commencement of the Offer (the "Expiration Date"), unless the Purchaser shall have extended the period of time for which the Offer is commencedopen pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable law, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as so extended, may expire. Unless this Agreement If at any Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by the Purchaser, the Purchaser may extend the Offer is terminated in accordance with its termsfrom time to time; provided, however, that, on the scheduled -------- ------- expiration date of the Offer, (i) if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Merger Subsidiary shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other applicable foreign statutes or regulations, (1ii) ifif any of the 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 until the earlier of (A) five business days after the time such condition shall no longer exist or (B) such time at which the scheduled matters described in such paragraphs (a) or extended expiration date (b) shall have become final and nonappealable; or (iii) if all of the Tender Offer Conditions are satisfied and more than 70% but less than 90% of the outstanding Common Shares on a fully diluted basis (excluding Options (as defined herein) which are not exercisable for 30 days) have been validly tendered and not withdrawn in the Offer, the Minimum Condition or any of Purchaser shall have the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary mayright, in its sole discretion, provide to extend the Offer from time to time up to a subsequent offering period (“Subsequent Offering Period”) maximum of seven additional business days in accordance with Rule 14d-11 of the 1934 Actaggregate. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Merger Subsidiary shall the Purchaser will 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As as soon as practicable on the after such expiration date of commencement of the Offer. Without the prior written consent of the Company, Parent and Merger Subsidiary the Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to not accept for payment or pay for any Shares in the Offer (together with all amendments and supplements thereto and including exhibits theretoif, as a result, Purchaser would acquire less than the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms number of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps Shares necessary to cause satisfy the Schedule TO Minimum Condition (as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, defined in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenAnnex I hereto), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Not later than the first business day after the date of this Agreement, Acquiror, Acquisition Subsidiary and ▇▇▇▇▇ will make a public announcement of the Offer.
(b) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, 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 Acquisition Subsidiary shall commence (commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than ten (10) business days after the initial public announcement of Acquisition Subsidiary’s intention to commence the Offer, which announcement will be made on November 16, 2007. Merger Subsidiary’s The obligation of Acquisition Subsidiary to accept for payment and pay for any Company ▇▇▇▇▇ Shares tendered in pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto, including the condition that there a number of ▇▇▇▇▇ Shares representing that number of ▇▇▇▇▇ Shares which would equal more than fifty percent (50%) of the ▇▇▇▇▇ Shares then issued and outstanding on a fully-diluted basis shall be have been validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration date of the Offer (as it may be extended hereunder) Offer, and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding withdrawn (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger ). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the prior written consent of ▇▇▇▇▇, Acquisition Subsidiary will not (i) decrease the Per Share Amount, (ii) reduce the maximum number of ▇▇▇▇▇ Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I A hereto in any manner materially adverse to the holders of Company ▇▇▇▇▇ Shares, and (iiiv) extend the expiration date of the Offer may not be extended beyond the twenty (20) business days following the commencement thereof, except as set forth expressly provided herein, or (vi) make any other change in this Section 2.01(a)the terms or conditions of the Offer which is adverse to the holders of ▇▇▇▇▇ Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreementthe Offer, unless Acquisition Subsidiary shall, and Acquiror shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all ▇▇▇▇▇ Shares validly tendered and not withdrawn (the “Acceptance Time”).
(c) On the date of commencement of the Offer, Acquiror and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the Schedule TO, the Offer is extended 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 accordance all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to ▇▇▇▇▇’▇ stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; except that in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by ▇▇▇▇▇ for inclusion or incorporation by reference into the Offer Documents. ▇▇▇▇▇, Acquiror and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading in any material respect, and Acquiror and Acquisition Subsidiary shall 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 Law. ▇▇▇▇▇ and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Acquiror and Acquisition Subsidiary shall provide ▇▇▇▇▇ and its counsel with a copy of, and shall consult with ▇▇▇▇▇ regarding any telephonic notification of any oral comments, and shall consult with ▇▇▇▇▇ before responding to any written comments, in each case that Acquiror or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms of this Agreementand conditions hereof, the Offer shall expire at 5:00 p.m.remain open until midnight, New York City timeEastern Time, on the date that is 21 Business Days twenty (for this purpose calculated in accordance with Section 14d-1(g)(320) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of ▇▇▇▇ ▇▇▇, Acquisition Subsidiary may (i) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) ifOffer, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I A shall not have been satisfied or waived, from time to timefor one (1) or more periods of not more than ten (10) business days each, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions and are satisfied or waived, (yii) extend the End Date, and Offer for one (21) for any period or more periods if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, not more than the period or any period periods required by Applicable Law; provided that Merger Subsidiary shall not be required to such rule, regulation, interpretation or position, or (iii) extend the Offer for one (1) or more periods for an aggregate period of not more than twenty (20) business days beyond the End Date. Following latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of ▇▇▇▇▇ Shares which would equal more than ninety percent (90%) of the Offerissued and outstanding ▇▇▇▇▇ Shares on a fully-diluted basis; provided, Merger however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, in its sole discretionwithout the consent of ▇▇▇▇▇, provide a subsequent offering period (“Subsequent Offering Period”) extend the offer in accordance with Rule 14d-11 of the 1934 Exchange Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoIn addition, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that Per Share Amount may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO increased and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to may be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and extended to the extent required by applicable U.S. federal securities lawsLaw in connection with such increase, in each case without the consent of ▇▇▇▇▇. The Company and its counsel shall be given a reasonable opportunity to review and comment If on the Schedule TO and initial scheduled expiration date of the Offer Documents or any extension thereof, any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by ▇▇▇▇▇, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and Acquisition Subsidiary each time before agree that if any such document is filed with of the SECconditions set forth in paragraphs (a) or (b) of Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any expiration date of the Offer, then Acquisition Subsidiary shall, and Parent and Merger Acquiror shall, if requested to do so by ▇▇▇▇▇, cause Acquisition Subsidiary shall give reasonable and good faith consideration to, extend the Offer one time for a period of up to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with ten (A10) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECbusiness days.
Appears in 1 contract
Sources: Merger Agreement (Coley Pharmaceutical Group, Inc.)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as practicable and in any event within ten days after the date hereof (or such later of this Agreement but in no event more than ten Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in .
(b) In accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless and subject only to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to), at or as promptly as practicable following the Expiration Time, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer is extended Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the Offer shall expire at 5:00 p.m., New York City time, on prior written consent of the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsCompany, Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Datenot, and (2) for any period required by any ruleParent shall cause Merger Sub not to, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 practicabledecrease the Offer Price, 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 Company Shares are validly tendered. The Offer Price change the form of consideration payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.,
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, that would give rise to a right to terminate the Offer this Agreement pursuant to any of the conditions set forth in Annex I heretoArticle 8, as promptly as practicable and in any event within ten days after the date hereof hereof, but in no 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 such later date as waiver by Buyer and the parties may mutually agree in writingCompany of the condition set forth under Part 1 of Annex I hereto (the “Pre-Launch Condition”), Merger Subsidiary Buyer shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation The Pre-Launch Condition is for the benefit of both Buyer and the Company and may be waived only by the Company and Buyer jointly (either in whole or in part) by written agreement. No party may invoke the Pre-Launch Condition if the non-satisfaction of such condition is caused by a breach of that party of any of its obligations under this Agreement. The obligations of Buyer to, and of Parent to cause Buyer to, accept for payment payment, and pay for for, any Company Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with satisfaction or waiver (to the terms extent permitted under this Agreement) of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Part 2 of Annex I. Merger Subsidiary 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 to waive at any time to, its sole discretion, waive, in whole or in part, any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, Buyer shall not:
(i) waive or change the Minimum Condition may not be waived, (as defined in Annex I);
(ii) no decrease the Offer Consideration;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company the Shares.
(c) Unless extended as provided in this Agreement, and (iii) the Offer may not be extended except shall expire at 12:00 midnight (New York City time) on the date that is twenty Business Days (calculated as set forth in this Section 2.01(a). Subject Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (such time, the “Initial Expiration Time” or such time and any subsequent time to which the terms and conditions expiration of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.“Expiration Time”). Subject to the provisions of Article 8, New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that if any of the Offer Conditions is commenced. Unless this Agreement not satisfied or waived at the Offer is terminated in accordance with its termsInitial Expiration Time or at any other Expiration Time of the Offer, Merger Subsidiary 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 (1) if, at the scheduled or extended expiration date of the Offer, the Minimum until such Offer Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been Conditions are satisfied or waived, from time ; provided that (i) Buyer shall not be required to time, until extend the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) Offer beyond the End Date, (ii) no such individual extension of the Offer shall be for a period of more than ten Business Days, and (2iii) 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 Offer or any period as may be required by Applicable Lawany other Governmental Authority; provided provided, that Merger Subsidiary Buyer shall not be required to extend the Offer beyond to a date later than the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, Buyer shall (and the Offer Documents shall so indicate) provide a subsequent offering period (“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 1934 Act). The Offer may not be terminated prior to the 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 Article 8.
(d) Subject to the foregoingterms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Buyer shall, and upon the terms and subject to the conditions of the OfferParent shall cause it to, Merger Subsidiary shall accept for payment and pay for (A) for, as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly practicable after the final expiration of the Offer, and all Shares (Bi) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or and (ii) validly tendered in any 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 holder thereof Offer Consideration pursuant to Section 2.09 to the seller in cash, without interest, on the terms and subject to reduction for any applicable withholding Taxesthe conditions of this Agreement.
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms a form of letter of transmittal and summary advertisement, if any, in respect of the Offer advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company SharesShares to the extent required by applicable United States federal securities laws and any other Applicable Law. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Buyer all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion the 1934 Act to be set forth in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Buyer and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. 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 any such document is filed with the SEC, and Parent and Merger Subsidiary Buyer shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Buyer shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary 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 receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary Buyer to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary Buyer or their counsel in any discussions or meetings with the SECSEC or other Governmental Authorities to the extent such participation is permitted by the SEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer this Agreement has not been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article 8, as promptly as practicable and in any event within ten days after the date hereof of this Agreement, but in no event more than fifteen (or such later 15) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment .
(b) Upon the terms and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered conditions set forth in accordance with this Agreement, including the terms prior satisfaction of the Offer, immediately prior to Minimum Condition and the scheduled expiration satisfaction or waiver by Purchaser of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly I (collectively, the “Offer Conditions”), Purchaser shall (and Parent shall cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment and promptly thereafter (and in any event within three (3) Business Days of the Expiration Date) pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition, and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by Agreement, without the Company in writingprior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes (D) impose conditions to the Offer in addition to those set forth in Annex Ithe Offer Conditions, (E) amend or amends modify any of the conditions set forth in Annex I Offer Conditions in any manner materially adverse to the that adversely affects holders of Company Shares, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and (iii) Purchaser may waive the Minimum Condition only with the prior written consent of the Company. The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms and conditions of this AgreementExpiration Date, unless the Offer this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight (i.e., one minute after 11:59 pm) (New York City time, ) on the date that is 21 twenty (20) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that on which the Offer is commenced. Unless this Agreement or first commenced (within the meaning of Rule 14d-2 under the Exchange Act), or, in the event the Offer is terminated has been extended beyond the initial expiration date pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary 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) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time as follows: (1i) ifif on the applicable Expiration Date, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Purchaser pursuant to this Agreement, waived by Parent or Purchaser, then Purchaser shall extend the Offer set forth in clause for successive periods of ten (I)(B10) of Business Days each, or such other period as may be agreed by Parent and the first paragraph of Annex I shall not have been satisfied or waivedCompany, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions Offer Conditions; and (yii) Purchaser shall extend the End Date, and (2) Offer for any the minimum period required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Purchaser to, and without the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary Company’s prior written consent Purchaser shall not be required to permitted to, extend the Offer 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. Following expiration Neither Parent nor Purchaser 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.
(f) Neither Parent nor Purchaser shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated pursuant to the terms hereof, then 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, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 not acquire any Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration and shall cause any depository acting on behalf of the OfferPurchaser to return, and (B) in accordance with applicable Legal Requirements, all Company tendered Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesregistered holders thereof.
(bg) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include contain as exhibits an exhibit or incorporated incorporate by reference thereto, the Offer to Purchase and forms of the related letter of transmittal transmittal, summary advertisement and summary advertisementnotice of guaranteed delivery, if any, in respect of and any other ancillary Offer documents and instruments pursuant to which the Offer shall be made (collectivelysuch Schedule TO and documents, together with any supplements and amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning Purchaser agree that they shall cause the Company that may be required Offer Documents filed by applicable securities laws or reasonably requested by either Parent or Merger Subsidiary for inclusion Purchaser with the SEC to comply in all material respects with the Schedule TO or Exchange Act and the Offer Documentsrules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and to 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 Subsidiary agree Purchaser further shall use reasonable best efforts to take all steps necessary to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Company and its stockholders that is required or is reasonably requested by Parent to be included in the Offer Documents. Unless previously modified or withdrawn in accordance with Section 5.3, Parent and Purchaser shall be entitled to include a description of the Company Board Recommendation in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO Offer Documents prior to the filing thereof with the SEC and Parent and Purchaser shall give reasonable and good faith consideration to any such comments. Parent and Purchaser agree to provide the Company and its counsel with any comments (whether written or oral) that Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents each time before promptly after receipt of such comments. Each of Parent and Purchaser shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer in coordination with the Company, shall provide the Company a reasonable opportunity to review and comment upon the responses to any such document is filed with comments and a copy of any such proposed written responses thereto prior to the SEC, filing thereof and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company on such responses.
(h) Parent shall cause to be provided to Purchaser on a timely basis all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and its counsel. shall cause Purchaser to perform, to the extent required and on a timely basis, all of Purchaser’s obligations under this Agreement.
(i) For purposes of this Agreement and the Offer, unless mutually agreed by Parent and Merger Subsidiary shall provide the Company and its counsel with (A) Company, any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time Shares subject to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt notices of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration guaranteed delivery shall be given)deemed not to be validly tendered into the Offer (including for purposes of determining whether the Minimum Condition has been satisfied) unless and until the Shares underlying such notices of guaranteed delivery are received, including as defined by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with Section 251(h)(6) of the SECDGCL.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 6.1, as promptly as practicable practicable, and in any event within ten days after five (5) Business Days, following the date hereof execution of this Agreement (or such other later date as the parties may mutually agree in writing), (i) Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer to purchase all issued and outstanding Common Shares at the Common Per Share Amount. The Common Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable taxes. Subject to Section 1.1(b), the obligations of Merger Subsidiary’s obligation Sub to accept for payment and pay for any Company Common Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to only those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to (the holders of Company Shares, and (iii) the “Tender Offer may not be extended except as set forth in this Section 2.01(aConditions”). Subject to The Company agrees that no Common Shares held by the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition Company or any of the conditions its Subsidiaries (other than any Common Shares held on behalf of third parties) will be tendered pursuant to the Offer set forth in clause Offer.
(I)(Bb) Parent on behalf of itself and Merger Sub expressly reserves the first paragraph of Annex I shall not have been satisfied or waived, right from time to time, until subject to Sections 1.1(c) and (d), to waive any Tender Offer Condition or increase the earliest Common Per Share Amount; provided, however, that without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (i) decrease the Common Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Common Shares sought to occur be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I, the “Original Minimum Condition”), except that Merger Sub may on a single occasion decrease the Minimum Condition to a level not less than (x) the satisfaction or waiver of such conditions and 56,182,474 Common Shares plus (y) 50% of the End total number of Common Shares, if any, issued or issuable (solely in the case of Common Shares issuable, such Common Shares issuable but not yet issued in response to any notice, duly and validly given (and not subsequently withdrawn) by a holder to the Company on or prior to the Expiration Date, of election to exercise a Company Stock Option or Warrant or to convert Preferred Shares) after the date of this Agreement and prior to the Expiration Date (2the “Lowered Minimum Condition”); (iv) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable impose additional conditions to the Offer or (v) make any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend change in the Offer beyond the End Date. Following expiration that would require an extension or delay of the Offer, Merger Subsidiary may, then current Expiration Date (other than an increase in its sole discretion, provide the Common Per Share Amount or a subsequent offering period (“Subsequent Offering Period”) one-time decrease in accordance with Rule 14d-11 of the 1934 Act. Subject Original Minimum Condition to an amount not less than the 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 Company 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, subject to reduction for any applicable withholding TaxesLowered Minimum Condition).
(bc) As soon as practicable on On the date of commencement of the Offer, but after affording the Company reasonable opportunity to review and comment thereon, Parent and Merger Subsidiary Sub shall (i) file or cause to be filed with the SEC SEC, with respect to the Offer, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference theretocontain the Offer, together with a related letter of transmittal, summary advertisement and other ancillary documents and instruments pursuant to which the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer will be made (collectively, together with any supplements or amendments or supplements thereto, and all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, the “Offer Documents”), ) that will comply in all material respects with the provisions of all applicable Federal and (ii) cause other securities laws. Parent and Merger Sub further agree to disseminate the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Common Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable Federal and other securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree Sub shall, and Parent further agrees to cause Merger Sub to, take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC SEC, and to cause the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Company Shares, in each case Common Shares as and to the extent required by applicable U.S. federal Federal and other securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the any Offer Documents (including each time amendment or supplement thereto) before any such document is they are filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Sub shall, and Parent agrees to cause Merger Sub to, provide the Company and its counsel with (A) in writing, if written), and to consult with the Company regarding, any comments or other communications, whether (written or oral, ) that may be received by Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents as promptly as practicable after receipt of those comments or other communications, thereof. The Company and (B) its counsel shall be given a reasonable opportunity to participate review and comment on any such written and oral comments and proposed responses.
(d) The Offer shall provide for an initial expiration date on the 20th Business Day following (and including the day of) the commencement of the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the response terms of this Agreement, the “Expiration Date”). Parent and Merger Subsidiary Sub shall not, and Parent agrees that it shall cause Merger Sub not to, terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 6.1 hereof. So long as this Agreement has not been terminated pursuant to those comments Section 6.1, if at any scheduled Expiration Date, any of the Tender Offer Conditions (including the Original Minimum Condition or the Lowered Minimum Condition, as applicable) shall not have been satisfied or waived, (i) Parent shall, and shall cause Merger Sub to, extend the Offer at any time and from time to provide comments on time, at the request of the Company, until such time as such Tender Offer Conditions are satisfied or waived, this Agreement is terminated pursuant to Section 6.1 or it becomes reasonably apparent that response (to which reasonable and good faith consideration such Tender Offer Conditions are not reasonably capable of being satisfied by the End Date; provided, however, that any extension shall be given)in increments of not more than five (5) Business Days; and provided, including by participating with further, that in no event shall such extensions exceed an aggregate of twenty (20) Business Days beyond the original Expiration Date without the prior written consent of Parent, and (ii) Parent and Merger Subsidiary Sub may, without the consent of the Company, further extend the Offer beyond the applicable Expiration Date until such time as such Tender Offer Conditions are satisfied or their counsel waived, in increments of not more than five (5) Business Days, provided that such extensions shall not in the aggregate exceed sixty-five (65) Business Days (less the aggregate period of any discussions extensions pursuant to clause (i) of this sentence) without the prior written consent of the Company. Notwithstanding the foregoing, except as expressly provided in Section 1.1(b) above, Parent shall not, and shall cause Merger Sub not to, extend the Offer if all of the Tender Offer Conditions have been satisfied or meetings waived and it is permitted under applicable Law to accept for payment and pay for Common Shares tendered in the Offer and not validly withdrawn; provided, however, that if (i) Parent or Merger Sub decreases the Original Minimum Condition to an amount not less than the Lowered Minimum Condition in accordance with clause (iii) of Section 1.1(b), (ii) following such change to the SECMinimum Condition, all of the Tender Offer Conditions are satisfied or waived and (iii) all Common Shares tendered in the Offer and not validly withdrawn have been accepted for payment by Merger Sub and the total number of Common Shares thereby acquired by Merger Sub is less than the Original Minimum Condition, then Parent shall, and shall cause Merger Sub to, extend the Offer for an aggregate period of not less than ten (10) or more than twenty (20) Business Days as a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with Section 6.1, (x) Parent shall, and shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer and (y) the offering period of the Offer shall be tolled for and during any period that a Governmental Entity of competent jurisdiction shall have enacted, issued or entered any temporary restraining order or preliminary injunction or similar order or legal restraint or prohibition that remains in effect and that enjoins or otherwise prohibits consummation of the Offer, and the offering period of the Offer shall be extended by a number of days equal to the number of days that any such temporary restraining order or preliminary injunction or similar order or legal restraint or prohibition remains in effect. Nothing contained in this Section 1.1(d) shall affect any termination rights in Article VI.
(e) Subject solely to the satisfaction or waiver by Parent and Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), as soon as practicable after the applicable Expiration Date, (i) Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer (the date of such acceptance for payment, the “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Common Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 9.01 and that none of the conditions events set forth in Annex I heretoA hereto shall have occurred and be continuing, Purchaser shall commence the Offer as promptly as reasonably practicable (and in any event within ten days Business Days) after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning hereof. The obligation of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation Purchaser to accept for payment and pay for any Company Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) that at least the number of Shares that shall constitute a majority of the then outstanding Shares on an as-if-converted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than the Rights)) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of each of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right (i) to waive any of such condition, (ii) to increase the conditions to price per Share payable in the Offer and (iii) to make any change other changes in the terms of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by in the Company in writing, case of clause (i) the Minimum Condition may not be waived, (iiiii) no other change may be made that changes which (w) decreases the form of consideration to be paid pursuant to Per Share Amount payable in the Offer, decreases (x) reduces the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or Offer, (y) imposes conditions to the Offer in addition to those set forth in Annex I, A hereto or amends (z) is otherwise disadvantageous to the stockholders of the Company. Subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I in any manner materially adverse to the holders of Company SharesA hereto, and (iii) Purchaser shall consummate the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the its terms of this Agreement, and accept for payment and pay for all Shares tendered pursuant to the Offer as soon as practicable after Purchaser is legally permitted to do so under applicable law. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall expire be 20 Business Days following the commencement of the Offer, if, at 5:00 p.m.the scheduled expiration of the Offer, New York City timeany of the conditions to Purchaser’s obligation to accept for payment Shares, shall not be satisfied or waived, or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) and each subsequent scheduled expiration date of the Offer, the sole condition or conditions remaining unsatisfied are the failure of the waiting period under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇) after Antitrust Improvements Act of 1976, as amended (the date “HSR Act”), to have expired or been terminated and/or, if there is a Dispute that is pending or continuing, the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsDispute Resolution Period shall not have expired , Merger Subsidiary then Purchaser shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest fifth Business Day after the later to occur of (xi) expiration or termination of the applicable waiting period under the HSR Act or (ii) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary Dispute Resolution Period. Purchaser may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the 1934 ActCompany except in the event that Purchaser terminates this Agreement pursuant to Section 9.01. Subject The Per Share Amount shall, subject to applicable withholding of taxes, be net to the foregoingseller in cash, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary . Purchaser shall accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer, promptly after . Notwithstanding the final expiration immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, and (BPurchaser 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-l(c) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tenderedunder the Exchange Act. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant If the payment equal to the Offer or validly tendered Per Share Amount in any Subsequent Offering Period 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 payment shall have paid net all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the holder thereof in cash, subject to reduction for any applicable withholding Taxessatisfaction of Purchaser that such taxes either have been paid or are not applicable.
(b) As soon promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that with respect to the Offer. The Schedule TO shall include as exhibits contain or incorporated shall incorporate by reference theretoan offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectivelysuch other documents, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in and to correct any material respect. omissions, and Parent and Merger Subsidiary Purchaser further agree to take all steps necessary to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith due consideration to any comments made all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after Parent’s or Purchaser’s, as the case may be, receipt of those comments or other communicationssuch comments, and (B) any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to participate review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the response Offer, Parent and Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent (as hereinafter defined), acting on behalf of Parent and Merger Subsidiary Purchaser, to those comments and return all tendered Shares to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECregistered holders thereof.
Appears in 1 contract
Sources: Merger Agreement (McKesson Corp)
The Offer. (a) Provided that nothing (i) none of the events set forth in paragraphs (b), (d) and (e) of Annex I to this Agreement shall have occurred thatand be existing, had (ii) the Company shall have complied with its obligations under Section 1.3(c) and Section 1.3(d) and (iii) this Agreement shall not have previously been validly terminated in accordance with Section 8.1, as promptly as reasonably practicable, but in no event later than five (5) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the date of this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer been commenced, would give rise for all of the outstanding shares of Company Common Stock (other than shares of Company Common Stock described in Section 3.1(b)) for a price per share of Company Common Stock equal to a right to terminate the Offer Price (as adjusted as provided in Section 1.1(f)). The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 promulgated under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) Subject to Section 1.1(d), as promptly as practicable on the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment shares of Company Common Stock tendered pursuant to any the Offer and (ii) the earliest date as of which each of the conditions set forth in Annex I hereto(the “Offer Conditions”) shall have been satisfied or waived, as promptly as practicable Merger Sub shall (and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writingParent shall cause Merger Sub to), accept for payment all shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). Subject to the immediately preceding sentence, the obligation of Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation Sub to accept for payment and pay for any shares of Company Shares Common Stock tendered in pursuant to the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Merger Sub of the Offer, immediately prior to the scheduled expiration each of the Offer Conditions (as it may and shall not be extended hereunder) and not withdrawn, a number subject to any other conditions). Promptly after the acceptance for payment of any shares of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid Common Stock tendered pursuant to the Offer, decreases Merger Sub shall pay for such shares of Company Common Stock.
(c) Parent and Merger Sub expressly reserve the right to increase the Offer Price Price, waive any Offer Condition or amend, modify or supplement any of the Offer Conditions or terms of the Offer; provided, however, that notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Merger Sub shall (without the prior written consent of the Company):
(i) decrease the number of shares of Company Shares Common Stock sought to be purchased by Merger Sub in the Offer;
(ii) reduce the Offer Price;
(iii) extend or imposes conditions otherwise change the expiration date of the Offer (except to the extent permitted or required pursuant to Section 1.1(d));
(iv) change the form of consideration payable in the Offer;
(v) amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition a manner that adversely affects, or would reasonably be expected to those set forth adversely affect, the holders of shares of Company Common Stock; or
(vi) amend or waive the Minimum Condition (as defined in Annex I, or amends the conditions set forth ).
(d) Unless extended as provided in Annex I in 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 this Agreement, unless the Offer is extended 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 Date”) that is 21 Business Days twenty (for this purpose 20) business days (calculated as set forth in accordance with Section Rule 14d-1(g)(3) promulgated under the ▇▇▇▇ ▇▇▇Exchange Act ) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, (i) Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff, the staff thereof NYSE or The Nasdaq Global Market (“Nasdaq”) that is applicable to the Offer or any period required by Applicable LawOffer; provided provided, that in no event shall Merger Subsidiary shall not Sub be required to extend the Offer beyond the End Walk-Away Date. Following expiration of the Offer, (ii) Merger Subsidiary Sub may, in its sole discretion and regardless of whether the Minimum Condition has been satisfied, extend the Offer for one period of no more ten (10) business days; provided, that in no event shall Merger Sub extend the Offer beyond the Walk-Away Date, (iii) if, on the Initial Expiration Date, the Minimum Condition is not satisfied, then, to the extent requested in writing by the Company no less than two (2) business days prior to the Initial Expiration Date, Merger Sub shall extend the Offer for one period of no more than ten (10) business days, (iv) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (an “Extended Expiration Date”), as applicable, (A) any Offer Condition is not satisfied or waived and this Agreement has not been terminated in accordance with its terms, Merger Sub may, in its discretion, extend the Offer for one or more periods of no more than ten (10) business days each until the date on which the Offer Conditions are satisfied or waived or (B) the Minimum Condition has been satisfied but the Spin-Off or the Trust Transfer has not been completed, Merger Sub shall extend the Offer from time to time for one or more periods until the earliest of (1) the date on which the Spin-Off or the Trust Transfer has been completed and (2) September 30, 2008, and (v) Merger Sub may, in its discretion, elect to provide for a subsequent offering period (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 promulgated under the Exchange Act following the first time that Merger Sub accepts for payment any shares of Company Common Stock tendered pursuant to the Offer (the “Acceptance Time”), and, if immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own less than ninety percent (90%) of the 1934 Actshares of Company Common Stock outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn), to the extent reasonably requested by the Company, Merger Sub shall provide for a subsequent offering period of at least ten (10) business days. Subject to the foregoing, and upon the terms and subject to the conditions of set forth in this Agreement and the Offer, Parent shall cause Merger Subsidiary shall Sub to, and Merger Sub shall, accept for payment and pay for (A) as promptly as practicable, all shares of Company Shares Common Stock validly tendered and not withdrawn pursuant to during such subsequent offering period as promptly as practicable after any such shares of Company Common Stock are tendered during such subsequent offering period and in any event in compliance with Rule 14e-1(c) promulgated under the Offer, promptly after Exchange Act. Without the final expiration prior written consent of the OfferCompany, and (B) all neither Parent nor Merger Sub shall accept for payment or pay for any shares of Company Shares validly tendered Common Stock in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cashif, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offera result, Parent and Merger Subsidiary Sub would acquire less than the number of shares of Company Common Stock necessary to satisfy the Minimum Condition.
(e) The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 8.1.
(f) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to 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 Merger Sub for the shares of Company Common Stock; provided that this subsection (f) shall not affect or supersede the provisions of Section 6.2(b)(i) hereof.
(g) The aggregate Offer Price to be paid by Parent and Merger Sub in the Offer for all issued and outstanding shares of Company Common Stock shall be equal to, and not exceed, $310,000,000. On or prior to the Offer Commencement Date, Parent and the Company shall cooperate and mutually agree in good faith on (i) file with the SEC a Tender calculation for determining the per share Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoPrice, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the actual per share Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that Price resulting from such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, calculation and (Biii) a reasonable opportunity whether and how any adjustment mechanism will be applied to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECsuch calculation.
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 11.01 and (ii) the Company shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretocomplied with its obligations under Section 2.02, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary shall, and Parent shall cause it to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the OfferOffer to purchase for cash all of the outstanding Shares at the Offer Price. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunderdefined in Annex I) and not withdrawnthe satisfaction, a number or waiver by Parent or Merger Subsidiary, of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (together with the Minimum Condition, the “Offer Conditions”). The date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer is referred to as the “Offer Commencement Date”.
(b) Parent and Merger Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer, including raising the Offer Price; provided that that, without the prior written consent of the Company or unless otherwise provided expressly contemplated by this Agreement or previously approved by the Company in writingAgreement, neither Parent nor Merger Subsidiary shall:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend the expiration date of the Offer except as otherwise provided herein; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company the Shares, and .
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 20 Business Days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that Offer Commencement Date (the Offer is commenced. Unless this Agreement or “Initial Expiration Date”) or, if the Offer is terminated Initial Expiration Date has been extended in accordance with its termsthis Agreement, the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) Merger Subsidiary shall, and Parent shall cause it to, extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law; provided that , (ii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (e) through (h) on Annex I have not been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to, upon the written request of the Company no less than one Business Day prior to any then scheduled Expiration Date, extend the Offer, up to an aggregate of 20 Business Days (whether in one or more periods as so requested by the Company), in order to permit the satisfaction of such conditions and (iii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (a) through (d) on Annex I have not be required been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to extend the Offer beyond for one or more periods ending no later than the End Date to permit the satisfaction of such conditions. The Offer may be terminated prior to the then scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with Article 11. Following expiration If this Agreement is validly terminated pursuant to Article 11, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) promptly (and in any event within two Business Days of such termination), irrevocably and unconditionally terminate the Offer. If this Agreement is validly terminated prior to the acceptance for payment of Shares in the Offer, Merger Subsidiary mayshall promptly return, and shall cause any depositary acting on behalf of Merger Subsidiary to return, in its sole discretionaccordance with Applicable Law, all tendered Shares to the registered holders thereof. Notwithstanding the foregoing, Merger Subsidiary shall, if requested by the Company, provide for a subsequent offering period (and one or more extensions thereof) (“Subsequent Offering Period”) of up to 20 Business Days, in accordance with Rule 14d-11 of the 1934 Act, if, at the commencement of the Subsequent Offering Period, (x) the Short Form Threshold has not been reached and (y) the Top-Up Option is not exercisable hereunder in accordance with its terms. Subject to the foregoing, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all Shares as they are validly tendered during such Subsequent Offering Period and in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer Documents will provide for the possibility of a Subsequent Offering Period in a manner consistent with the terms of this Section 2.01(c).
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction of the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, as promptly as practicable after Merger Subsidiary is legally permitted to do so under Applicable Law, 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 Offer (the final expiration of time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment and pay for all Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the Minimum Condition and the satisfaction or waiver of each of the other Offer Conditions (B) all Company Shares validly tendered in and shall not be subject to any Subsequent Offering Period, promptly after such Company Shares are validly tenderedother conditions). The Offer Price payable in respect of each Company Share validly tendered and not properly withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof seller in cash, subject to reduction for without interest, less any applicable withholding Taxesof Taxes required by Applicable Law.
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms Purchase, a form of letter of transmittal transmittal, a form of summary advertisement and summary advertisement, if any, in respect of any schedule or form required to be filed pursuant to the Offer Instructions to Schedule TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company Shares, in each case, as and to the extent required by Applicable Law (including the 1934 Act). The Company Offer shall promptly furnish to be conducted in compliance with Applicable Law (including the 1934 Act).
(f) Parent and Merger Subsidiary shall cause the Offer Documents to (i) comply with the applicable requirements of the 1934 Act and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in writing all information concerning order to make the Company that may be required by applicable securities laws or reasonably requested statements therein, in light of the circumstances under which they were made, not misleading; provided, however, no covenant is made by Parent or Merger Subsidiary with respect to information supplied by the Company for inclusion in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company’s Solicitation/Recommendation Statement on Schedule TO 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) or the Offer Documentsinformation statement containing the information required by Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder (together with any amendments or supplements thereto, the “Information Statement”), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by Applicable Law. Parent and Merger Subsidiary agree to take all steps necessary to shall cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsApplicable Law (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith due consideration to any reasonable comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (Ai) copies of any written comments or other communications, whether written or oraland shall inform them of any oral communications, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith due consideration shall be givengiven to reasonable comments), including by participating with . Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or their counsel its staff with respect to the Offer Documents or the Offer.
(g) Parent shall cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary’s obligations under this Agreement.
(h) Nothing in this Section 2.01 shall affect any discussions or meetings with the SECtermination rights in Section 11.01.
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred that, had been terminated in accordance with Section 11.01 and (ii) the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any Company is not then in material breach of the conditions set forth in Annex I heretoSection 2.01(f), as promptly as practicable and in any event within ten days after the date hereof (or such but in no event later date as the parties may mutually agree in writingthan November 29, 2021), Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇1▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (the “Offer Conditions”). The date on which Merger Subsidiary Sub commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Sub expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved that, Merger Sub shall waive the condition set forth in clause (H) of Annex I if, but only if, directed by the Company in writingat any time and from time to time; provided, further, that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition may not be waived, (as defined in Annex I) or the condition set forth in clause (H) of Annex I;
(ii) no decrease the Offer Price other than in the manner required by Section 3.07;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought to be purchased in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided herein; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially that broadens such conditions or is otherwise adverse to the holders of Company the Shares, and .
(iiic) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the The Offer shall expire at 5:00 p.m., immediately after 11:59 p.m. (New York City time, ) on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇1▇▇▇ ▇▇▇) after the Offer Commencement Date (such time, the “Expiration Time”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.01 (in which event the term “Expiration Time” shall mean the earliest time and date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Sharesextended, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 11.01, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I hereto (the “Offer Conditions”). The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the OfferOffer (other than the Minimum Condition (as defined in Annex I), which is non-waivable and may not be amended or modified); provided that, without the prior written consent of the Company (provided that unless otherwise provided by this Agreement or previously such consent has been approved by the Company in writingSpecial Committee), Merger Subsidiary shall not:
(i) decrease the Minimum Condition may not be waived, Offer Price;
(ii) no change may be made that changes the form of consideration to be paid pursuant in the Offer;
(iii) decrease the number of Shares subject to the Offer, decreases ;
(iv) extend or otherwise change the Expiration Time of the Offer Price or the number of Company Shares sought in the Offer or imposes except as provided herein;
(v) impose conditions to the Offer other than the Offer Conditions; or
(vi) otherwise amend, modify or supplement any of the terms or conditions of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company Shares, and .
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger Subsidiary shall, and Parent shall cause it to, extend the Offer (i) for one or more consecutive increments of not more than 10 Business Days from time to time (1) if, at the then-scheduled or extended expiration date time of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been satisfied or waived, from time ; provided that Parent shall not be required to time, until extend the earliest Offer pursuant to occur this clause (i) beyond the earlier of (x) the satisfaction or waiver of such conditions and (yA) the End Date, Date and (2B) the date that is 10 Business Days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied immediately prior to the Acceptance Time) have been satisfied and (ii) for any period required by (x) any applicable rule, regulation, interpretation or position of the SEC or the staff thereof applicable to or (y) the Offer rules and regulations of NASDAQ or any period required by Applicable Law; and provided that further that, without the Company’s prior written consent, Parent and Merger Subsidiary shall not be required to extend the Offer beyond the End Datethen-scheduled expiration time if an Adverse Recommendation Change has occurred (except for any extension pursuant to clause (ii)). Following expiration The time when the Offer expires (taking into account any permitted or required extensions in accordance with this Section 2.01(c)) is referred to herein as the “Expiration Time.” Merger Subsidiary shall not, and Parent shall cause it not to, terminate or withdraw the Offer prior to the then-scheduled Expiration Time of the OfferOffer unless this Agreement is validly terminated in accordance with its terms. In the event that this Agreement is terminated, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoingshall, and upon the terms Parent shall cause it to, promptly, irrevocably and subject to the conditions of unconditionally terminate the Offer. In the event that the Offer is terminated, Merger Subsidiary shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on its behalf to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, (i) accept for payment and pay for (A) payment, as promptly as practicablepracticable (and in any event within one Business Day) after the Expiration Time, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after Offer (the final expiration of 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 (Bii) all Company Shares validly tendered in any Subsequent Offering Period, promptly after thereafter pay for such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 TaxesShares.
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms Purchase, a form of letter of transmittal and a summary advertisement, if any, in respect of the Offer advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company SharesShares to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company shall use their reasonable best efforts to ensure that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO TO, and any amendments or supplements thereto, comply in all material respects with the Offer Documentsrules and regulations promulgated by the SEC under the Exchange Act. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or on its behalf for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawslaws or the rules and regulations of NASDAQ. The Company shall furnish to Parent and Merger Subsidiary the information relating to the Company required by the Exchange Act to be set forth in the Schedule TO and the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the any Offer Documents Document each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating using reasonable best efforts to give the Company the opportunity to participate with Parent and Merger Subsidiary or their and its counsel in any substantive discussions or meetings with the SEC. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn in accordance with Section 7.03(b).
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 6.1, as promptly as practicable practicable, and in any event within ten days after five (5) Business Days, following the date hereof execution of this Agreement (or such other later date as the parties may mutually agree in writing), (i) Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the OfferOffer to purchase all issued and outstanding Common Shares at the Common Per Share Amount. The Common Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable taxes. Subject to Section 1.1(b), the obligations of Merger Subsidiary’s obligation Sub to accept for payment and pay for any Company Common Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to only those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to (the holders of Company Shares, and (iii) the "Tender Offer may not be extended except as set forth in this Section 2.01(aConditions"). Subject to The Company agrees that no Common Shares held by the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition Company or any of the conditions its Subsidiaries (other than any Common Shares held on behalf of third parties) will be tendered pursuant to the Offer set forth in clause Offer.
(I)(Bb) Parent on behalf of itself and Merger Sub expressly reserves the first paragraph of Annex I shall not have been satisfied or waived, right from time to time, until subject to Sections 1.1(c) and (d), to waive any Tender Offer Condition or increase the earliest Common Per Share Amount; provided, however, that without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (i) decrease the Common Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Common Shares sought to occur be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I, the "Original Minimum Condition"), except that Merger Sub may on a single occasion decrease the Minimum Condition to a level not less than (x) the satisfaction or waiver of such conditions and 56,182,474 Common Shares plus (y) 50% of the End total number of Common Shares, if any, issued or issuable (solely in the case of Common Shares issuable, such Common Shares issuable but not yet issued in response to any notice, duly and validly given (and not subsequently withdrawn) by a holder to the Company on or prior to the Expiration Date, of election to exercise a Company Stock Option or Warrant or to convert Preferred Shares) after the date of this Agreement and prior to the Expiration Date (2the "Lowered Minimum Condition"); (iv) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable impose additional conditions to the Offer or (v) make any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend change in the Offer beyond the End Date. Following expiration that would require an extension or delay of the Offer, Merger Subsidiary may, then current Expiration Date (other than an increase in its sole discretion, provide the Common Per Share Amount or a subsequent offering period (“Subsequent Offering Period”) one-time decrease in accordance with Rule 14d-11 of the 1934 Act. Subject Original Minimum Condition to an amount not less than the 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 Company 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, subject to reduction for any applicable withholding TaxesLowered Minimum Condition).
(bc) As soon as practicable on On the date of commencement of the Offer, but after affording the Company reasonable opportunity to review and comment thereon, Parent and Merger Subsidiary Sub shall (i) file or cause to be filed with the SEC SEC, with respect to the Offer, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”") that shall include as exhibits or incorporated by reference theretocontain the Offer, together with a related letter of transmittal, summary advertisement and other ancillary documents and instruments pursuant to which the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer will be made (collectively, together with any supplements or amendments or supplements thereto, and all deliveries, mailings and telephonic notices required by Rule 14d-3 under the “Exchange Act, the "Offer Documents”), ") that will comply in all material respects with the provisions of all applicable Federal and (ii) cause other securities laws. Parent and Merger Sub further agree to disseminate the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Common Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable Federal and other securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree Sub shall, and Parent further agrees to cause Merger Sub to, take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC SEC, and to cause the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Company Shares, in each case Common Shares as and to the extent required by applicable U.S. federal Federal and other securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the any Offer Documents (including each time amendment or supplement thereto) before any such document is they are filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Sub shall, and Parent agrees to cause Merger Sub to, provide the Company and its counsel with (A) in writing, if written), and to consult with the Company regarding, any comments or other communications, whether (written or oral, ) that may be received by Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents as promptly as practicable after receipt of those comments or other communications, thereof. The Company and (B) its counsel shall be given a reasonable opportunity to participate review and comment on any such written and oral comments and proposed responses.
(d) The Offer shall provide for an initial expiration date on the 20th Business Day following (and including the day of) the commencement of the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the response terms of this Agreement, the "Expiration Date"). Parent and Merger Subsidiary Sub shall not, and Parent agrees that it shall cause Merger Sub not to, terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 6.1 hereof. So long as this Agreement has not been terminated pursuant to those comments Section 6.1, if at any scheduled Expiration Date, any of the Tender Offer Conditions (including the Original Minimum Condition or the Lowered Minimum Condition, as applicable) shall not have been satisfied or waived, (i) Parent shall, and shall cause Merger Sub to, extend the Offer at any time and from time to provide comments on time, at the request of the Company, until such time as such Tender Offer Conditions are satisfied or waived, this Agreement is terminated pursuant to Section 6.1 or it becomes reasonably apparent that response (to which reasonable and good faith consideration such Tender Offer Conditions are not reasonably capable of being satisfied by the End Date; provided, however, that any extension shall be given)in increments of not more than five (5) Business Days; and provided, including by participating with further, that in no event shall such extensions exceed an aggregate of twenty (20) Business Days beyond the original Expiration Date without the prior written consent of Parent, and (ii) Parent and Merger Subsidiary Sub may, without the consent of the Company, further extend the Offer beyond the applicable Expiration Date until such time as such Tender Offer Conditions are satisfied or their counsel waived, in increments of not more than five (5) Business Days, provided that such extensions shall not in the aggregate exceed sixty-five (65) Business Days (less the aggregate period of any discussions extensions pursuant to clause (i) of this sentence) without the prior written consent of the Company. Notwithstanding the foregoing, except as expressly provided in Section 1.1(b) above, Parent shall not, and shall cause Merger Sub not to, extend the Offer if all of the Tender Offer Conditions have been satisfied or meetings waived and it is permitted under applicable Law to accept for payment and pay for Common Shares tendered in the Offer and not validly withdrawn; provided, however, that if (i) Parent or Merger Sub decreases the Original Minimum Condition to an amount not less than the Lowered Minimum Condition in accordance with clause (iii) of Section 1.1(b), (ii) following such change to the SECMinimum Condition, all of the Tender Offer Conditions are satisfied or waived and (iii) all Common Shares tendered in the Offer and not validly withdrawn have been accepted for payment by Merger Sub and the total number of Common Shares thereby acquired by Merger Sub is less than the Original Minimum Condition, then Parent shall, and shall cause Merger Sub to, extend the Offer for an aggregate period of not less than ten (10) or more than twenty (20) Business Days as a "subsequent offering period" in accordance with Rule 14d-11 under the Exchange Act. Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with Section 6.1, (x) Parent shall, and shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer and (y) the offering period of the Offer shall be tolled for and during any period that a Governmental Entity of competent jurisdiction shall have enacted, issued or entered any temporary restraining order or preliminary injunction or similar order or legal restraint or prohibition that remains in effect and that enjoins or otherwise prohibits consummation of the Offer, and the offering period of the Offer shall be extended by a number of days equal to the number of days that any such temporary restraining order or preliminary injunction or similar order or legal restraint or prohibition remains in effect. Nothing contained in this Section 1.1(d) shall affect any termination rights in Article VI.
(e) Subject solely to the satisfaction or waiver by Parent and Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), as soon as practicable after the applicable Expiration Date, (i) Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer (the date of such acceptance for payment, the "Acceptance Date"). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Common Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Metromedia International Group Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 6.1 and no event shall have occurred thatand no circumstance shall exist which would result in the occurrence of any of the events set forth in Annex A hereto (the "COMMENCEMENT CONDITIONS"), had Purchaser shall, in accordance with the applicable provisions of the Dutch Merger Code and the rules and regulations of the Amsterdam Stock Exchange (the "ASE") and otherwise in accordance with applicable Law (as defined in Section 7.11(d)), commence the Offer been commencednot later than the fifth Business Day (as defined in Section 7.11(a)) (the "COMMENCEMENT DATE") after the Registration Statement (as defined in Section 1.7(a)) is declared effective pursuant to the Securities Act of 1933, would give rise as amended (the "SECURITIES ACT"), by the Securities and Exchange Commission (the "SEC"). The obligation of Purchaser to a right accept for payment Company Shares properly tendered pursuant to terminate the Offer pursuant (the "TENDERED SHARES") shall be subject only to any the satisfaction or waiver by Purchaser of the conditions set forth in Annex I heretoB hereto (the "OFFER CONDITIONS"). Purchaser expressly reserves the right, as promptly as practicable and in any event within ten days after the date hereof its sole discretion (or such later date as the parties may mutually agree in writingsubject to Section 6.2(b)), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment waive any Commencement Condition or Offer Condition and pay for make any Company Shares tendered other changes in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration and conditions of the Offer (or to extend the Offer beyond a scheduled Expiration Date (as it may defined in Section 1.3) if any Offer Conditions shall not be extended hereunder) and not withdrawnsatisfied); provided, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company and Stockholder in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that which increases the Minimum Condition (as defined in Annex B hereto), decreases the price per share payable in the Offer, changes the form of consideration to be paid pursuant to the Offer, decreases payable in the Offer Price or (other than by adding consideration), reduces the maximum number of Company Shares sought to be purchased in the Offer, or amends the terms of the Offer or Offer Conditions or imposes conditions or terms to the Offer in addition to those set forth in Annex Iherein which, or amends the conditions set forth in Annex I in any manner materially such case, are adverse to the holders of the Company Shares, and (iii) Shares or make the likelihood of the Offer may not be extended except as set forth succeeding more remote in this Section 2.01(a)any material respect. Subject Purchaser agrees that, in the event that it is unable to consummate the Offer on the initial scheduled Expiration Date due to the terms and conditions failure of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time Conditions to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been be satisfied or waived, it shall, unless this Agreement is terminated pursuant to Section 6.1, extend the Offer and set a subsequent scheduled Expiration Date, and shall continue to so extend the Offer and set subsequent scheduled Expiration Dates, until the Termination Date (as defined in Section 7.11(j)). Purchaser agrees that (i) the initial scheduled Expiration Date of the Offer shall be not later than the earlier of (x) 60 Business Days following the Commencement Date and (y) the date on which Purchaser reasonably believes that all Offer Conditions (other than the Minimum Condition) will be satisfied or waived (which date may not be fewer than 20 Business Days following the Commencement Date) and (ii) each subsequent scheduled Expiration Date shall be not later than the earlier of (x) 20 Business Days following the previous scheduled Expiration Date, (y) the date on which Purchaser reasonably believes that all Offer Conditions (other than the Minimum Condition) will be satisfied or waived and (z) the Termination Date. To the maximum extent permitted by the Laws of The Netherlands ("DUTCH LAW"), including the Dutch Merger Code, and by the rules and regulations of the ASE, it is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to 10 3 any such condition (except for any action or inaction by Purchaser constituting a breach of this Agreement) and, except as provided in Section 6.2(b), may be waived by Purchaser, in whole or in part, at any time and from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion. Purchaser may, provide at any time, transfer or assign to one or more Subsidiaries of Purchaser (organized or incorporated under the Laws of Canada, the United States, The Netherlands or any other jurisdiction, provided, that such other jurisdiction would not impose a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 withholding tax on the payment of the 1934 Act. Subject Offer Consideration (as defined in Section 1.2)) the right to the foregoing, and upon the terms and subject to the conditions purchase all or any portion of the OfferTendered Shares, Merger Subsidiary but any such transfer or assignment 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 relieve Purchaser of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to its obligations under the Offer or validly tendered in any Subsequent Offering Period shall be paid net prejudice the rights of tendering shareholders to receive payment for the holder thereof in cash, subject to reduction Tendered Shares accepted for any applicable withholding Taxespayment.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Offer Agreement (Seagram Co LTD)
The Offer. (a) Provided that nothing Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall have occurred thatcause Sub to, had amend the Existing Offer to reflect the Offer been commencedPrice and to make such other amendments as are necessary to conform the Existing Offer to this Agreement. The obligation of Sub to, would give rise and of Parent to a right to terminate cause Sub to, amend the Offer and accept for payment, and pay for, any Shares tendered pursuant to any of the Offer shall be subject only to the conditions set forth in Annex I hereto, as promptly as practicable and in any event within ten days after Exhibit A (the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the "Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunderConditions") and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless including the Offer is extended Merger Option (as defined herein) (any of which may be waived in accordance with whole or in part by Sub in its sole discretion, except that Sub shall not waive the Minimum Condition (as defined in Exhibit A) without the consent of the Company). Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) 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 Offer shall expire at 5:00 p.m.next sentence, New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time or (1v) ifchange the form of consideration payable in the Offer. 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, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been be satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived, (yii) extend the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the End Datelatest 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. Following Parent and Sub agree that if at any scheduled expiration date of the Offer, Merger Subsidiary may, the Minimum Condition or the HSR Condition (as defined in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”Exhibit A) in accordance with Rule 14d-11 shall not have been satisfied and none of the 1934 Actconditions set forth in paragraphs (a), (b), (c), (d), (e), (f), (g) or (h) of Exhibit A shall exist, at therequest 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 foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause Sub to, accept for payment payment, and pay for (A) as promptly as practicablefor, all Company Shares validly tendered and not withdrawn pursuant to the OfferOffer that Sub becomes obligated to accept for payment, promptly and pay for, pursuant to the Offer as soon as practicable after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on On the date of commencement amendment of the Existing Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC a an amendment (the "14D-1 Amendment") to its Tender Offer Statement on Schedule TO 14D-1 dated as of October 3, 1997 (as amended from time to time, the "Schedule 14D-1") with respect to the Offer (together with all Offer, which shall contain such amendments and supplements thereto to the offer to purchase and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of a related letter of transmittal and summary advertisement, if anyadvertisement as Parent, in respect of its reasonable judgment, shall deem necessary (such Schedule 14D-1 and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), and (ii) Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable Federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary Sub further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselstockholders of the Company. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those such comments and to provide comments on that response (to which reasonable cooperate with the Company and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their its counsel in responding to any discussions such comments.
(c) Parent shall provide or meetings with cause to be provided to Sub on a timely basis the SECfunds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Wallace Computer Services Inc)
The Offer. (a) (i) Provided that nothing (x) this Agreement shall not have occurred thatbeen terminated in accordance with Article VIII, had (y) the Offer been commenced, would give rise Company has timely provided any information required to a right to terminate the Offer be provided by it pursuant to any Sections 1.1(b) and 1.3 and (z) the Company is prepared in accordance with Section 1.2(a) to file with the Securities and Exchange Commission (“SEC”), and to disseminate to the holders of Shares, the conditions set forth in Annex I heretoSchedule 14D-9 on the same date as Purchaser commences the Offer, Purchaser shall, as promptly as practicable and in any event within ten days after the date hereof of this Agreement, but in no event later than the tenth (10th) day (other than Saturday or Sunday) on which banks are open in New York, New York (each such later day, a “Business Day”) following the date as of this Agreement and, without the parties may mutually agree consent of the Company, not to be unreasonably withheld, conditioned or delayed, in writing)no event earlier than the tenth (10th) Business Day following the date of this Agreement, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the OfferOffer to purchase for cash any (subject to the Minimum Tender Condition) and all Shares at the Offer Price. Merger Subsidiary’s The obligation of Purchaser to accept for payment and to pay for any Company Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject only to the condition that there shall be validly tendered satisfaction or waiver (to the extent permitted hereunder) of those conditions set forth in Annex I (the “Offer Conditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire at one (1) minute after 11:59 p.m. Eastern Time on the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, and/or such later time and date to which the Offer has been extended in accordance with Section 1.1(a)(ii), the “Expiration Date”). Purchaser expressly reserves the right at any time, or from time to time, in its sole discretion, to waive any Offer Condition or modify or amend the terms of the Offer, immediately including the Offer Price, except that, without the prior to the scheduled expiration written consent of the Offer Company, Purchaser may not (as it may be extended hereunderA) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to decrease the Offer and to make any Price or change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of the consideration to be paid payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, decreases (C) amend, modify, or waive the Offer Price or the number of Company Shares sought in the Offer or imposes Minimum Tender Condition, (D) impose conditions to on the Offer in addition to those set forth the Offer Conditions, (E) amend or modify the Offer Conditions in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company Shares, and Shares or (iiiF) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect Expiration Date of the Offer (collectively, together with any amendments except as required or supplements thereto, the “Offer Documents”permitted by Section 1.1(a)(ii), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen validly terminated in accordance with its terms, had as promptly as reasonably practicable after the date of this Agreement, but in no event later than four (4) business days (as defined in Rule 14d-1(g)(3) promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer been commencedwithin the meaning of the applicable rules and regulations of the SEC. The obligations of Merger Sub to, would give rise and of Parent to a right cause Merger Sub to, accept for payment, and pay for, Shares tendered pursuant to terminate the Offer pursuant are subject only to any the satisfaction or waiver of each of the conditions set forth in Annex I heretoA (the “Tender Offer Conditions”). The Offer Price shall be net to the seller in cash, as promptly as practicable and in any event within ten days after the date hereof without interest.
(or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning b) The initial expiration time of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to midnight, New York City time on the condition that there shall be validly tendered twentieth (20th) business day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3)) (the “Initial Expiration Date”). Notwithstanding the foregoing, unless this Agreement is terminated in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writinghereof, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of The Nasdaq Global Market Inc. (“Nasdaq”), the SEC or the staff thereof applicable to the Offer or any period required by Applicable any other Law, and (ii) if on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (together with the Initial Expiration Date, the “Expiration Date”), any Tender Offer Condition is not satisfied or waived, Merger Sub shall extend the Offer for one (1) or more successive periods as determined by Merger Sub of up to ten (10) business days each (or any longer period as may be requested by Merger Sub and approved in advance by the Company) in order to permit the satisfaction of all of the Tender Offer Conditions; provided provided, however, that in no event with respect to either clause (i) or (ii) shall Merger Subsidiary shall not Sub be required to extend the Offer beyond the End Walk Away Date. Following expiration , and provided further however, that if at the Initial Expiration Date or at any subsequent Expiration Date (other than any such Expiration Date that follows an extension of the OfferOffer pursuant to Section 1.1(c)), all of the Tender Offer Conditions (except for the Minimum Condition) are satisfied or have been waived, Merger Subsidiary Sub shall only be required to extend the Offer and its Expiration Date beyond the Initial Expiration Date or such subsequent Expiration Date for one or more successive periods in order to permit the satisfaction of all of the Tender Offer Conditions for an aggregate of forty (40) business days, unless the Minimum Condition shall be satisfied earlier. The Offer may not be terminated prior to the Walk Away Date, unless this Agreement is validly terminated in accordance with Article 9, in which case Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. Nothing in this Section 1.1(b) shall affect any termination rights in Article 9; and in the event of any conflict between the provisions of this Section 1.1(b) and Article 9, Article 9 shall be controlling.
(c) If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Offer (excluding for this purpose as shares that are tendered for payment pursuant to the Offer any shares that are tendered in the Offer pursuant to notices of guaranteed delivery), Merger Sub may, in its sole discretionwithout the consent of the Company, elect to provide a subsequent offering period (“Subsequent Offering Period”and one or more extensions thereof) for the Offer in accordance with Rule 14d-11 of the 1934 Exchange Act (each a “Subsequent Offering Period”) following its acceptance for payment of shares of Company Common Stock in the Offer. The Subsequent Offering Period, if any, shall be a period of not less than three (3) nor more than twenty (20) business days in the aggregate (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act. Subject ).
(d) Merger Sub expressly reserves the right to waive any condition to the foregoingOffer, and upon to increase the Offer Price and/or to modify the other terms and subject to the conditions of the Offer, except that, without the consent of the Company, Merger Subsidiary Sub shall accept for payment and pay for not do any of the following:
(i) reduce the number of Shares sought to be purchased by Merger Sub in the Offer;
(ii) reduce the Offer Price;
(iii) modify or waive the Minimum Tender Condition (as defined in Annex A);
(iv) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant add to the Tender Offer Conditions set forth in Annex A or modify or supplement any Tender Offer Condition (other than to waive such Tender Offer Conditions);
(v) change the form of consideration payable in the Offer; or
(vi) other than as permitted or required by Section 1.1(b) or Section 1.1(c), promptly after extend or otherwise change the final expiration Expiration Date of the Offer; or
(vii) otherwise amend, and (B) all Company Shares validly tendered modify or supplement the Offer in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant manner adverse 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 Taxesholders of Shares.
(be) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments Offer, which shall contain an offer to purchase and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of a related letter of transmittal containing the terms and conditions set forth in this Agreement and Annex A and summary advertisement, if any, in respect of advertisement (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, being referred to as the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to provide Parent and Merger Subsidiary in writing with all information concerning the Company that may be is required by applicable federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion to be included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent necessary such that such information shall have become false the Offer Documents do not contain an untrue statement of a material fact or misleading in omit to state any material respectfact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Each of Parent and Merger Subsidiary agree to Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaws. The Parent and Merger Sub shall afford the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to stockholders, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall (i) provide to the Company and its counsel with copies of any written comments (Aand a reasonably detailed description of any oral comments) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communicationssuch comments, (ii) consult with the Company and its counsel prior to responding to any such comments, (Biii) provide the Company and its counsel a reasonable opportunity to participate review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC and (iv) provide the Company and its counsel with copies of all such responses.
(f) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) pay for all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer promptly (within the meaning of Rule 14e-1(c) under the Exchange Act) after the expiration of the Offer; provided that Merger Sub shall (and Parent shall cause Merger Sub to) pay for any Shares validly tendered in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response any Subsequent Offering Period promptly after such Shares are tendered.
(to which reasonable and good faith consideration g) The Offer Price shall be given)adjusted to the extent appropriate to reflect the effect of any stock split, including 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 participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with Sub for the SECShares.
Appears in 1 contract
Sources: Merger Agreement (Lasercard Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article 8, as promptly as practicable and in any event within ten days after the date hereof of this Agreement but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment .
(b) Upon the terms and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered conditions set forth in accordance with this Agreement, including the terms prior satisfaction of the Offer, immediately prior to Minimum Condition and the scheduled expiration satisfaction or waiver by Purchaser of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary I (collectively, the “Offer Conditions”), Purchaser shall (and Parent shall cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition, and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by Agreement, without the prior written consent of the Company (which the Company may withhold in writingits sole discretion), Purchaser shall not (A) decrease the Offer Price, (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases (C) decrease the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or imposes Offer, (D) impose conditions to the Offer in addition to those set forth in Annex Ithe Offer Conditions, (E) amend or amends modify any of the conditions set forth in Annex I Offer Conditions in any manner materially adverse to the that adversely affects holders of Company Shares, (F) change or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and (iii) Purchaser may waive the Minimum Condition only with the prior written consent of the Company, which may be granted or withheld in the Company’s sole discretion. The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms and conditions of this AgreementExpiration Date, unless the Offer this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) on the date that is 21 Business Days twenty (20) business days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the “Initial Expiration Date”) or, in the event the Offer is terminated has been extended beyond the Initial Expiration Date pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary 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, is referred to as the “Expiration Date”).
(e) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time as follows: (1i) if, at if on the scheduled or extended expiration date of the OfferExpiration Date, the Minimum Condition or any of the conditions Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Purchaser pursuant to this Agreement, waived by Parent or Purchaser, then Purchaser shall extend the Offer set forth for successive periods of ten (10) Business Days each (or such shorter period as may be agreed by Parent and the Company), in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time order to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions Offer Conditions; and (yii) Purchaser shall extend the End Date, and (2) Offer for any the minimum period required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided, however, that the staff thereof applicable foregoing clauses (i) or (ii) of this Section 1.1(e) shall not 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 Purchaser 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.
(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 or any period required Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by Applicable Lawthis Agreement prior to such action; provided that Merger Subsidiary nothing in this Section 1.1(f) shall not be required construed to extend permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Purchaser may (and the Offer beyond Documents may reserve the End Date. Following expiration right of the Offer, Merger Subsidiary may, in its sole discretion, Purchaser to) provide for a subsequent offering period (“Subsequent Offering Period”within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 under the Exchange Act of not less than three (3) nor more than twenty (20) business days (for this purpose calculated in accordance with Rule 14d-11 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the 1934 ActOffer. Subject to the foregoing, and upon Upon the terms and subject to the conditions of set forth in this Agreement and the Offer, Merger Subsidiary Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn during any such subsequent offering period in compliance with Rule 14e-1(c) under the Exchange Act.
(h) Neither Parent nor Purchaser shall terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the Offerterms hereof, Purchaser shall (and Parent shall cause Purchaser to) promptly after the final expiration (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, and (B) all Company shall not acquire any Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bi) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company Purchaser agree that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and to supplement the information contained in the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Corporations and the Company’s stockholders that is required 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 Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser shall respond promptly to those any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(j) 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 provide comments perform, on that response (to which reasonable and good faith consideration shall be given)a timely basis, including by participating with all of Purchaser’s obligations under this Agreement. Parent and Merger Subsidiary or Purchaser shall, and each of Parent and Purchaser shall ensure that all of their counsel in respective controlled Affiliates shall, tender any discussions or meetings with Shares held by them into the SECOffer.
Appears in 1 contract
Sources: Merger Agreement (M/a-Com Technology Solutions Holdings, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had been terminated in accordance with Article VIII and that the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoCompany has complied with its obligations under Section 1.2, as promptly as practicable and after the date of this Agreement but in any no event within more than ten (10) business days after the date hereof of this Agreement (or such later date as the parties may mutually agree in writingagree), Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer .
(as it may be extended hereunderb) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement and to the satisfaction, or waiver (to the extent permitted under this Agreement) 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(d), Purchaser shall promptly on or after the Expiration Date accept for payment (such time of acceptance for payment, the “Offer Acceptance Time”) and pay (by delivery of funds to the Depository Agent) 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 on or prior to the Expiration Date 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 Offer Acceptance Time.
(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, unless and with consummation thereof subject to the Minimum Condition and the other Offer 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 of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which consent may be withheld in the sole discretion of the Company), Purchaser shall not (A) decrease the Offer Price other than in accordance with Section 1.1(f), (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) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the terms of the Offer or the Offer Conditions in a manner that adversely affects holders of Shares, (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 Expiration Date, unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City one minute after 11:59 p.m. (Boston time, ) on the date that is 21 Business Days twenty (for this purpose 20) business days (calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “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) Notwithstanding any provision to the contrary contained in this Agreement but subject to the parties’ respective rights to terminate the Agreement pursuant to Article VIII, (i) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, Purchaser may, in its termsdiscretion (and without the consent of the Company or any other Person), Merger Subsidiary extend the Offer on one or more occasions, for an additional period of up to 10 business days per extension, to permit such Offer Condition to be satisfied, (ii) Purchaser shall extend the Offer from time to time for: (1A) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any ruleLaw, regulation, any interpretation or position of the SEC or the staff thereof or any rules and regulations of the NASDAQ Stock Market (“NASDAQ”) applicable to the Offer, and (B) periods of up to 10 business days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act or any applicable foreign Antitrust Law shall have expired or been terminated, (iii) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, at the request of the Company, Purchaser shall extend the Offer on one or more occasions for an additional period required by Applicable Lawof up to 10 business days per extension, to permit such Offer Condition to be satisfied, and (iv) if the Company has delivered a Change of Status Notice to Parent, and the Company so requests, Purchaser shall extend the Offer on one or more occasions so that the Expiration Date does not occur earlier than two (2) business days immediately after the expiration of the Notice Period or Intervening Event Notice Period, as applicable; provided provided, however, that Merger Subsidiary in no event shall not Purchaser: (1) be required to extend the Offer beyond the earlier to occur of (x) the valid termination of this Agreement in compliance with Section 8.1 and (y) the End Date (such earlier date, the “Extension Deadline”), (2) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company, or (3) be permitted, without the prior written consent of the Company, which shall not be unreasonably withheld, or required by the Company, to extend the Offer by periods exceeding an aggregate of 20 business days in the event that (x) the Company has not delivered to Parent a Change of Status Notice and (y) each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived as of any then scheduled Expiration Date and the Minimum Condition shall not have been satisfied as of such scheduled Expiration Date. Following expiration Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the OfferCompany except in the event that this Agreement is terminated pursuant to Section 8.1.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, Merger Subsidiary mayreverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its sole discretionsecurities that is prohibited by the terms of this Agreement.
(g) Nothing in this Section 1.1 shall be deemed to impair, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 limit or otherwise restrict the right of the 1934 ActCompany, Purchaser or Parent to terminate this Agreement pursuant to Section 8.1. Subject In the event that this Agreement is terminated pursuant to the foregoingterms hereof, Purchaser shall (and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Parent shall accept for payment and pay for (Acause Purchaser to) as promptly as practicable, all Company Shares validly tendered practicable irrevocably and not withdrawn pursuant to unconditionally terminate the Offer, promptly after the final expiration of the Offer, and (B) all Company shall not acquire any Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to holders of Company Shares. The Company shall promptly furnish , in each case as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable securities laws or reasonably requested by Law. Parent or Merger Subsidiary for inclusion in and Purchaser agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.Company
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer this Agreement has not been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article 8, as promptly as practicable and in any event within ten days after the date hereof of this Agreement, but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment .
(b) Upon the terms and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered conditions set forth in accordance with this Agreement, including the terms prior satisfaction of the Offer, immediately prior to Minimum Condition and the scheduled expiration satisfaction or waiver by Purchaser of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary I (collectively, the “Offer Conditions”), Purchaser shall (and Parent shall cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment and promptly thereafter (and in any event within three (3) Business Days of the Expiration Date) pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition, and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by Agreement, without the prior written consent of the Company (which the Company may withhold in writingits sole discretion), Purchaser shall not (A) decrease the Offer Price, (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes (D) impose conditions to the Offer in addition to those set forth in Annex Ithe Offer Conditions, (E) amend or amends modify any of the conditions set forth in Annex I Offer Conditions in any manner materially adverse to the that adversely affects holders of Company Shares, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and (iii) Purchaser may waive the Minimum Condition only with the prior written consent of the Company, which may be granted or withheld in the Company’s sole discretion. The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms and conditions of this AgreementExpiration Date, unless the Offer this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight (i.e., one minute after 11:59 pm) (New York City time, ) on the date that is 21 twenty (20) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that on which the Offer is commenced. Unless this Agreement or first commenced (within the meaning of Rule 14d-2 under the Exchange Act), or, in the event the Offer is terminated has been extended beyond the initial expiration date pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary 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) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time as follows: (1i) ifif on the applicable Expiration Date, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Purchaser pursuant to this Agreement, waived by Parent or Purchaser, then Purchaser shall extend the Offer set forth in clause for successive periods of not more than ten (I)(B10) of Business Days each (as determined by Purchaser), or such other period as may be agreed by Parent and the first paragraph of Annex I shall not have been satisfied or waivedCompany, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions Offer Conditions; and (yii) Purchaser shall extend the End Date, and (2) Offer for any the minimum period required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Purchaser to, and without the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary Company’s prior written consent Purchaser shall not be required to permitted to, extend the Offer 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. Following expiration Neither Parent nor Purchaser 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.
(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 but excluding vesting of Company Stock Options, Company Restricted Stock Awards or Other Company Stock-Based Awards), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action, including with respect to its securities, that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Purchaser shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated pursuant to the terms hereof, then 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, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 not acquire any Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration and shall cause any depository acting on behalf of the OfferPurchaser to return, and (B) in accordance with applicable Legal Requirements, all Company tendered Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of and any other ancillary Offer documents and instruments pursuant to which the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), shall be made and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company Purchaser agree that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (collectively, the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and to 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 Subsidiary agree Purchaser further shall use reasonable best efforts to take all steps necessary to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s stockholders that is required 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 Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, SEC and Parent and Merger Subsidiary Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counselsuch comments. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, (whether written or oral, that ) Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary the Offer Documents or their counsel the Offer in any discussions or meetings coordination with the SECCompany.
(i) Parent shall cause to be provided to Purchaser on a timely basis 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, to the extent required and on a timely basis, all of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rightside Group, Ltd.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII , as promptly as practicable reasonably practicable, and in any event within ten days 10 Business Days after the date hereof of this Agreement (or such later date as subject to the parties may mutually agree in writingCompany having timely provided any information required to be provided by it pursuant to Section 1.2), Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer. The obligations of Merger Subsidiary’s obligation Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Company Shares tendered in pursuant to the Offer shall only be subject to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunderdefined in Exhibit A hereto) and not withdrawn, a number (ii) the satisfaction or waiver by ▇▇▇▇▇▇ Sub of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority each of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, Exhibit A hereto (i) together with the Minimum Condition may not be waivedCondition, (iithe “Offer Conditions”) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreementhereof. Merger Sub expressly reserves the right, unless in its sole discretion, to (A) increase the Offer is extended in accordance Price (by increasing the Cash Consideration and/or the amounts that may become payable pursuant to the CVR Agreement), (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer prior to the Acceptance Time (as defined below) to the extent not inconsistent with the terms of this Agreement, except that, unless otherwise provided by this Agreement, without the consent of the Company, Merger Sub shall not (1) reduce the Offer Price, (2) increase the Offer Price by an increment of less than $0.10 per share, (3) change the form of consideration payable in the Offer (other than by adding consideration as contemplated by Section 1.1(a)(A)), (4) reduce the number of Shares sought to be purchased in the Offer, (5) waive, amend or change the Minimum Condition or the condition set forth in clause (b)(v) in Exhibit A, (6) add to the Offer Conditions, (7) extend the expiration of the Offer except as required or permitted by Section 1.1(b), (8) provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act or (9) modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby.
(b) The Offer shall initially be scheduled to expire at 5:00 p.m., New York City time, midnight Eastern Time on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that commencement of the Offer is commenced. Unless this Agreement or (the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary shall extend the date and time to which the Offer from has been so extended (the Initial Expiration Date, or such later date and time to time which the Initial Expiration Date has been so extended, the “Expiration Date”). Notwithstanding anything to the contrary contained in this Agreement, but subject to the parties’ respective termination rights under Section 8.1: (1i) if, at as of the scheduled or extended expiration date of the OfferExpiration Date, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall has not have been satisfied or any other Offer Condition is not satisfied and has not been waived, from time to timeMerger Sub may, until in its discretion (and without the earliest to occur consent of (x) the satisfaction Company or waiver of such conditions and (y) the End Dateany other Person), and shall, at the request of the Company, extend the Offer on one or more occasions, for additional periods of up to 10 Business Days per extension, to permit such Offer Condition to be satisfied or (2ii) for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof or the rules of the Nasdaq Stock Market LLC (“NASDAQ”) applicable to the Offer Offer; provided, that, in no event shall Parent or any period required by Applicable Law; provided that Merger Subsidiary shall not Sub be required permitted to extend the Offer beyond the End Date. Following expiration Outside Date without consent of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period Company.
(“Subsequent Offering Period”c) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Subsidiary shall Sub will accept for payment (the date and time of such acceptance, the “Acceptance Time”) and thereafter 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 Company 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 as soon as practicable after the Expiration Date. The Offer will not permit Shares to be tendered in any Subsequent Offering Period shall be paid net pursuant to the holder thereof in cash, subject to reduction for any applicable withholding Taxesguaranteed delivery procedures.
(bd) As soon as practicable on Unless this Agreement is terminated pursuant to Section 8.1, Merger Sub shall not terminate or withdraw the Offer prior to any scheduled expiration date of commencement without the prior written consent of the OfferCompany in its sole and absolute discretion. In the event this Agreement is terminated pursuant to Section 8.1, Parent Merger Sub shall promptly (and Merger Subsidiary in any event within one (1) Business Day) following such termination terminate the Offer and shall (i) file not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with the SEC a Tender Offer Statement on Schedule TO with respect this Agreement prior to the Offer (together with all amendments and supplements thereto and including exhibits theretoAcceptance Time, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company Merger Sub shall promptly furnish return, or cause any depositary acting on behalf of Merger Sub to Parent and Merger Subsidiary in writing return, all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and tendered Shares to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECtendering stockholders.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article VIII and none of the conditions set forth in Annex I heretohereto (the "Tender Offer Conditions") shall exist after the date hereof and ----------------------- prior to the commencement of the Offer, as promptly as practicable and in any event within ten practicable, but not later than 10 business days after following the date hereof (or such later date as the parties may mutually agree in writing)hereof, Merger Subsidiary Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) an offer to purchase all outstanding Shares at the OfferOffer Price and shall take the actions set forth in Section 1.3 below and shall take all other actions as required by any order, writ, injunction, judgment, arbitration award, agency requirement, decree, law, statute, ordinance, rule or regulation (each a "Law"). Merger Subsidiary’s The obligation of Purchaser to accept for payment and or --- pay for any Company Shares tendered in the Offer shall pursuant thereto will be subject only to the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver of the Offer, immediately Tender Offer Conditions.
(b) Without the prior to the scheduled expiration written consent of the Offer (as it may be extended hereunder) and Special Committee, Purchaser shall not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes impose conditions to the Offer in addition to those set forth the Tender Offer Conditions, (ii) modify or amend the Tender Offer Conditions or any other term of the Offer in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company Shares, and (iii) reduce the number of Shares subject to the Offer, (iv) reduce the Offer may not be extended Price, (v) except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreementfollowing sentence, unless extend the Offer is extended if all of the Tender Offer Conditions are satisfied or waived, or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Purchaser may, in accordance with applicable Law, and without the terms consent of this Agreementthe Special Committee, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer at any time, and from time to time time, (1i) if, if at the then-scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Tender Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been satisfied or waived, from time to time, until the earliest to occur of ; or (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2ii) 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 or any Offer; for an aggregate period required by Applicable Law; provided that Merger Subsidiary shall of not be required to extend the Offer more than 20 business days (for all such extensions) beyond the End Date. Following latest expiration date that would be permitted under clause (i) or (ii) of this sentence (such aggregate period, the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“"Subsequent Offering Period”) "). -------------------------- So long as this Agreement is in accordance with Rule 14d-11 of effect, the 1934 Act. Subject to Offer has been commenced, the foregoingTender Offer Conditions have not been satisfied or waived Purchaser shall, and upon Parent shall cause Purchaser to, cause the terms Offer not to expire, subject, however, to Purchaser's and subject to Parent's rights of termination under this Agreement. Parent and Purchaser shall comply with the conditions of the Offer, Merger Subsidiary shall accept for obligations respecting prompt payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to announcement under 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 Company 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, subject to reduction for any applicable withholding TaxesExchange Act.
(bc) As soon Parent and Purchaser represent that the Offer Documents (as practicable defined in Section 1.3(a)) will comply in all material respects with the provisions of applicable federal securities Laws and, on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file 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 Tender Offer Statement on Schedule TO 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 Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary specifically for inclusion in the Schedule TO or the Offer Documents. Each of ParentParent and Purchaser, Merger Subsidiary on the one hand, and the Company Company, on the other hand, agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Parent respect and Merger Subsidiary agree Purchaser further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders stockholders of Company Sharesthe Company, in each case case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel Laws.
(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 Schedule TO and the Offer Documents each time before any such document is filed with the SECaccept for payment, and Parent pay for, any and Merger Subsidiary shall give reasonable all Shares that Purchaser becomes obligated to accept for payment, and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communicationspay for, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect pursuant to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 11.01, as promptly as practicable and after the date of this Agreement, but in any event within ten days no later than 10 Business Days (unless otherwise agreed by Parent and the Company) after the date hereof of this Agreement (or such later date as subject to the parties may mutually agree in writingCompany having timely provided any information required to be provided by it pursuant to Section 2.01(g) and Section 2.02(a)), Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. The date on which Merger Subsidiary’s obligation Sub commences (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer is hereinafter referred to as the “Offer Commencement Date.”
(b) The Offer shall be made by means of an offer to purchase containing the terms set forth in this Agreement and the Offer Conditions (the “Offer to Purchase”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and pay for for, any Company Shares validly tendered in and not validly withdrawn pursuant to the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) , the Termination Condition and the other conditions set forth in Annex I. I (all of the offer conditions set forth in Annex I, collectively, the “Offer Conditions”). Merger Subsidiary Sub expressly reserves the right (in its sole discretion) at any time and from time to waive time to waive, in whole or in part, any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that that, unless otherwise provided by this Agreement or as previously approved in writing by the Company in writingCompany, Merger Sub shall not: (i) waive or change the Minimum Condition may not be waived, or the Termination Condition or impose conditions to the Offer other than the Offer Conditions; (ii) no decrease the Offer Price; (iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer; (iv) decrease the maximum number of Shares sought to be purchased in the Offer; (v) extend or otherwise change the Expiration Time other than as required or permitted by this Agreement; or (vi) otherwise amend, decreases modify or supplement any of the Offer Price Conditions or the number other terms of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company the Shares, and (iii) the . The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms Expiration Time unless this Agreement is terminated in accordance with Section 11.01.
(c) The Offer initially shall be scheduled to expire at one minute after 11:59 p.m. (New York City time) on the date that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) and conditions Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) from the Offer Commencement Date (unless otherwise agreed to in writing by Parent and the Company) (the “Initial Expiration Time”, and such time or such subsequent time to which the Initial Expiration Time of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the “Expiration Time”).
(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 11.01:
(i) if, as of the then-scheduled Expiration Time, any Offer Condition (other than the Minimum Condition) has not been satisfied or, to the extent waivable by Merger Sub or Parent, waived by Merger Sub or Parent, Merger Sub may in its sole discretion (and, if requested by the Company, shall, and Parent shall expire at 5:00 p.m.cause Merger Sub to) extend the Offer on one or more occasions for an additional period of up to ten (10) business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) (or such longer period as Parent and the Company may agree) per extension, to permit such Offer Condition to be satisfied;
(ii) Merger Sub shall extend the Offer from time to time for any period required by any applicable Law, any interpretation or position of the SEC or the staff thereof, or the rules and regulations of Nasdaq applicable to the Offer; and
(iii) if, as of the then-scheduled Expiration Time, all of the Offer Conditions have been satisfied or, to the extent waivable by Merger Sub or Parent, waived by Merger Sub or Parent, except that the Minimum Condition has not been satisfied, Merger Sub may (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer on one or more occasions for an additional period of up to ten (10) business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) (or such longer period as Parent and the Company may agree) per extension; provided that Merger Sub shall not be required to extend the Offer pursuant to this clause (iii) beyond the earlier of (A) one minute after 11:59 p.m. (New York City time, ) on the date that is 21 Business Days 20 business days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) after the first date that on which all of the Offer is commenced. Unless this Agreement Conditions (other than the Minimum Condition) have been satisfied and (B) the End Date; provided that, notwithstanding the foregoing clauses (i), (ii) and (iii), in no event shall Merger Sub be permitted without the prior written consent of the Company or the Offer is terminated in accordance with its terms, Merger Subsidiary shall required to extend the Offer from time to time (1) if, at beyond the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest earlier to occur of (x) the satisfaction or waiver termination of such conditions this Agreement in accordance with Section 11.01 and (y) the End Date.
(e) If this Agreement is terminated in accordance with Section 11.01, Merger Sub shall terminate the Offer and (2) for shall not acquire any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable Shares pursuant to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend Offer. If the Offer beyond is terminated or withdrawn by Merger Sub in accordance with the End Date. Following expiration terms of the Offerthis Agreement, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period Sub shall promptly return (“Subsequent Offering Period”and cause any depository acting on behalf of Merger Sub to return) in accordance with Rule 14d-11 of the 1934 Act. Subject applicable Law all tendered Shares to the foregoing, and upon registered holders thereof.
(f) On the terms and subject to the conditions set forth in this Agreement and to the satisfaction, or (to the extent waivable by Parent or Merger Sub) waiver by Parent or Merger Sub, of the OfferOffer Conditions, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) (i) promptly after the Expiration Time, irrevocably accept for payment and pay for all Shares tendered (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn validly withdrawn) pursuant to the OfferOffer (the time of such acceptance, the “Acceptance Time”) and (ii) promptly after the final expiration of the OfferAcceptance Time, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after pay for such Company Shares are validly tenderedShares. The Offer Price payable in respect of each Company Share validly tendered and not validly withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof respective seller in cash, without interest, on the terms and subject to reduction for the conditions set forth in this Agreement. Without limiting the generality of Section 8.01, Parent shall cause to be provided to Merger Sub, or otherwise cause to be delivered, all of the funds necessary to purchase any applicable withholding Taxesand all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(bg) As soon as practicable on On the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TOOffer Documents”) that shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms a related form of letter of transmittal and summary advertisement, if any, in respect of (ii) cause the Offer to Purchase and other appropriate Offer Documents to be disseminated to holders of Shares to the extent required by the 1934 Act. The Company will promptly furnish to Parent and Merger Sub the information relating to the Company required by the 1934 Act to be set forth in the Offer Documents. Parent will promptly furnish to the Company the information relating to Parent or Merger Sub required by the 1934 Act to be set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 (collectively, together with any amendments or supplements thereto, the “Offer DocumentsSchedule 14D-9”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary agree to Sub shall take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be promptly filed with the SEC and the appropriate Offer Documents as so corrected to be promptly disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel1934 Act. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (A) any written comments or other written communications (and a summary of all substantive oral comments or communications, whether written or oral, ) that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments or other communications. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and (B) Merger Sub shall provide the Company and its counsel a reasonable opportunity to participate in the response of review and comment on such Offer Documents or response, and Parent and Merger Subsidiary to those comments and to provide comments on that response (to which shall give reasonable and good faith consideration to any such comments.
(h) At or prior to the Acceptance Time, Parent shall be given)duly authorize, including by participating with Parent execute and Merger Subsidiary or their counsel in any discussions or meetings with deliver, and shall ensure that the SECRights Agent duly authorizes, executes and delivers, the CVR Agreement.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, Inc.)
The Offer. (a) Provided that nothing Upon the terms and subject to the conditions of this Agreement (including Article VII), as promptly as reasonably practicable following the date hereof, but in any event no later than the fifteenth (15th) Business Day after the date of this Agreement, Merger Sub shall, and Parent shall have occurred thatcause Merger Sub to, had commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Common Stock validly tendered pursuant to the Offer been commenced, would give rise are subject only to a right the satisfaction or waiver (to terminate the Offer pursuant to any extent permitted under this Agreement) of the conditions set forth in Annex I hereto(as they may be amended in accordance with this Agreement, as promptly as practicable the “Offer Conditions”).
(b) To the extent permitted by Law, Parent and Merger Sub reserve the right, at any time, to waive, in whole or in part, any event within ten days after Offer Condition (other than the date hereof (or such later date as the parties may mutually agree in writingMinimum Condition), to increase the Offer Price or to modify the terms of the Offer; provided, however, that, without the prior written consent of the Company, neither Parent nor Merger Subsidiary Sub shall commence (i) reduce the maximum number of shares of Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition or Termination Condition, (iv) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (v) modify or amend any existing Offer Condition in a manner that is adverse to the holders of Common Stock (other than in an immaterial respect) or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger or impair the ability of Parent or Merger Sub to consummate the Offer, (vi) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-2 14d-11 under the ▇▇▇▇ ▇▇▇Exchange Act or (viii) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offerotherwise amend, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly modify or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to supplement the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company SharesCommon Stock or in any manner that delays or unreasonably interferes with, and (iii) hinders or impairs the consummation of the Offer. Subject to Section 1.1(g), the Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated prior to the terms and conditions of this Agreementits scheduled Expiration Time, unless the Offer this Agreement is extended terminated in accordance with the terms of this Agreement, the Article VII.
(c) The Offer shall initially expire at 5:00 p.m., New York City time, on the date that is 21 twenty-one (21) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement of the Offer is commenced. Unless this Agreement or (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer is terminated has been extended pursuant to and in accordance with its termsSection 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Merger Subsidiary shall Sub may or shall, as applicable, extend the Offer from time to time as follows:
(1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2i) for any the period as required by any applicable Law, including any rule, regulation, interpretation or position of the SEC or SEC, the staff thereof applicable or the Applicable Exchange;
(ii) if, at the then-scheduled Expiration Time, the Company, on the one hand, or Parent or Merger Sub, on the other hand, brings or shall have brought any Legal Action in accordance with Section 8.15 to enforce specifically the performance of the terms and provisions of this Agreement by the other parties hereto, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the Governmental Authority presiding over such action, as the case may be, but, in each case of clauses (A) and (B), not past the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a));
(iii) if, at the then-scheduled Expiration Time, any Offer Condition has not either been (A) satisfied or (B) waived by Parent and Merger Sub (to the Offer extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub may, in its sole discretion (and without the consent of the Company or any other Person), and if requested by the Company, Merger Sub shall (and Parent shall cause Merger Sub to), extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period required to end at 5:00 p.m., New York City time, on the last Business Day of such period), the length of each such period to be determined by Applicable LawParent in its sole discretion (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions; provided provided, however, that Merger Subsidiary Sub shall not be required to extend the Offer beyond to a date later than the End Date. Following expiration Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a)); or
(iv) if, at the then-scheduled Expiration Time, the full amount of the OfferDebt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing, Merger Subsidiary may, Sub shall have the right in its sole discretiondiscretion to extend the Offer on one (1) occasion for up to ten (10) Business Days (with such period to end at 5:00 p.m., provide New York City time, on the last Business Day of such period), the length of such period to be determined by Parent in its sole discretion (or such longer period as may be agreed to by Parent and the Company); provided, that Merger Sub shall not be permitted to extend the Offer to a subsequent offering period date later than the Termination Date (“Subsequent Offering Period”) in accordance with Rule 14d-11 for the avoidance of doubt, as the 1934 ActTermination Date may be extended pursuant to Section 7.2(a)). Subject to the foregoingMerger Sub shall not, and upon Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 1.1(d).
(e) On the terms and subject to the conditions of this Agreement, including satisfaction or waiver of all of the OfferOffer Conditions, (i) prior to 9:00 a.m., New York City time, on the Business Day (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Time, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment and pay (the time of acceptance for (Apayment, the “Offer Acceptance Time”) as promptly as practicable, all Company Shares shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, promptly after at the final expiration Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(Bf) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company Share validly agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be 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 TaxesOffer.
(bg) As soon Unless this Agreement is terminated in accordance with Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is terminated in accordance with Article VII, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or request any depositary acting on behalf of Merger Sub to promptly return, all tendered shares to the tendering stockholders in accordance with applicable Law.
(h) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as practicable on contemplated by this Agreement prior to such action.
(i) On the date of commencement of the Offer, Guarantor, Parent and Merger Subsidiary Sub shall (i) file with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that ), which shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer an offer to Purchase purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of other appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to the holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case Common Stock as and to the extent required by applicable U.S. federal securities lawsLaw. The Company and its shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.upon
Appears in 1 contract
Sources: Merger Agreement (ShoreTel Inc)
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 9.1 and (ii) none of the conditions events set forth in Annex I heretoA hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurred and be continuing (and shall not have been waived by Parent), 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)practicable, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Securities Exchange Act of 1934, as amended (the Offer"Exchange Act")), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Subsidiary’s obligation Subsidiary to accept for payment and to pay for any Company Shares tendered in (and the Offer obligation of Parent to cause Merger Subsidiary to accept for payment and to pay for any Shares tendered) shall be subject only to (i) the condition that there shall at least 80% of the outstanding Shares be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding withdrawn (the “"Minimum Condition”"), and (ii) and the other conditions set forth in Annex I. A. Merger Subsidiary expressly reserves the right to waive any of the conditions to increase the Offer and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, (i) decreases the Offer Price or the Cash Portion or the Stock Portion thereof, (ii) changes the form or combination of consideration to be paid in the Offer, (iii) reduces the number of Company Shares sought to be purchased in the Offer or imposes conditions to the Offer in addition to those set forth in Annex IOffer, or (iv) amends the conditions set forth in Annex I in A to broaden the scope of such conditions, add any manner materially adverse to additional conditions, or otherwise adversely affect the holders of Company Shares, and (iiiv) extends the Offer may not be extended except as provided in Section 1.1(b), or (vi) amends or waives the Minimum Condition. It is agreed that the conditions set forth in this Section 2.01(a)Annex A are for the sole benefit of Parent and Merger Subsidiary and may be waived by Parent and Merger Subsidiary, in whole or in part at any time and from time to time, in their sole discretion, other than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent and Merger Subsidiary at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or its Subsidiary will be tendered in the Offer.
(b) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreementthereof, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 Business Days twenty (for this purpose calculated in accordance with Section 14d-1(g)(320) under the ▇▇▇▇ ▇▇▇) business days after the date that the Offer is commenced. Unless this Agreement or ; provided, however, that without the Offer is terminated in accordance with its termsconsent of the Company Board (the "Company Board"), Merger Subsidiary shall extend the Offer may (i) from time to time (1) ifextend the Offer, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived, but not beyond the termination of this Agreement pursuant to Article IX; (yii) extend the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer; or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide (iii) include a subsequent offering period (“Subsequent Offering Period”as such term is defined in Rule 14d-1 under the Exchange Act) in accordance with Rule 14d-11 of to the 1934 ActOffer for a period up to twenty (20) business days. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) accept for payment payment, and pay for (A) as promptly as practicablefor, all Company Shares validly tendered and not withdrawn pursuant to the Offer that Merger Subsidiary becomes obligated to accept for payment and pay for pursuant to the Offer, as promptly as practicable after the final expiration of the Offer. No fraction of a share of Parent Common Stock will be issued in connection with the payment of the Stock Portion upon consummation of the Offer, and but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (Bafter aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The the Offer Price payable in respect shall receive from Parent an amount of each Company Share validly tendered and not withdrawn pursuant cash (rounded to the Offer or validly tendered nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the closing price of one (1) share of Parent Common Stock on the first date Merger Subsidiary accepts Shares for exchange in the Offer, as reported on the Nasdaq National Market ("Nasdaq"). With respect to any Subsequent Offering Period such Shares the Cash Portion shall be paid net to the holder seller thereof in cash, subject to reduction only for any applicable federal back-up withholding Taxesor stock transfer taxes payable by such seller.
(bc) As soon as practicable after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (the "Registration Statement"). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the "Preliminary Prospectus"). As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “"Schedule TO”") that shall include as exhibits or incorporated by reference thereto, with respect to the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) shall cause the Offer Documents to be disseminated to holders of Company Shares. The Company Schedule TO shall promptly furnish to contain as an exhibit or incorporate by reference the Preliminary Prospectus (or portions thereof) and forms of the related letter of transmittal and summary advertisement, if any. Parent and Merger Subsidiary agree that they shall cause the Schedule TO, the Preliminary Prospectus and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in writing all information concerning material respects with the Company Exchange Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 4.1(c)). Parent and Merger Subsidiary further agree that may the Offer Documents, on the date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be required by applicable securities laws stated therein or reasonably requested 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 Subsidiary with respect to information supplied by the Company or any of its shareholders in writing specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company agrees that the information provided by the Company in writing specifically 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 stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and Registration Statement or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary 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 Company Sharesthe Company's shareholders, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO TO, the Registration Statement and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall agree to provide in writing to the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments or other communications, and (B) shall provide Company and its counsel with a reasonable opportunity to participate in the response of Parent and or Merger Subsidiary to those comments such comments. Parent shall use all reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after its filing and to provide comments on that response (to which reasonable and good faith consideration maintain such effectiveness for so long as shall be given)required for the issuance of Parent Common Stock pursuant to the Offer. Following the time the S-4 is declared effective, including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with shall file the SECfinal prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
Appears in 1 contract
Sources: Merger Agreement (Carescience Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretohereto (the “Offer Conditions”), as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of Offer Conditions. The date on which Merger Sub commences the Offer (is referred to as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionOffer Commencement Date”.
(b) and the other conditions set forth in Annex I. Merger Subsidiary Sub expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or imposes conditions to (vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially that broadens such conditions or is otherwise adverse to the holders of Company the Shares, and .
(iiic) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the The Offer shall expire at 5:00 p.m., 11:59 p.m. (New York City time, ) on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section (in which event the term “Expiration Date” shall mean the earliest time and date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Sharesextended, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
The Offer. (a) Provided that nothing Unless this Agreement shall have occurred thatbeen terminated in accordance with Article VII, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable Purchaser shall (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 Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer. Merger Subsidiary’s Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable after the date hereof, but in no event later than July 11, 2012.
(b) The obligation of Purchaser to accept for payment and pay for any Company Shares tendered in pursuant to the Offer shall be subject only (x) to the satisfaction of the condition that at the expiration of the Offer there shall be validly tendered in accordance with the terms of the OfferOffer and not withdrawn that number of Shares which, immediately prior to the scheduled expiration when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding 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 Purchaser) of the other conditions set forth in Annex I. Merger Subsidiary A hereto (such conditions, together with the Minimum Condition, the “Offer Conditions”). Purchaser expressly reserves the right to waive any of such Offer Conditions (other than the conditions Minimum Condition), to increase the Offer Price and to make any change other changes in the terms of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that without the prior written consent of the Company which (i) decreases the Offer Price, (ii) changes the form of consideration to be paid pursuant to in the Offer, decreases (iii) reduces the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I A hereto, (v) (A) waives, amends or modifies the Minimum Condition or (B) modifies or amends any of the other Offer Conditions, in 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 Company Shares, and Shares or (iiivii) the Offer may not be extended except as set forth in permitted by this Section 2.01(a). Agreement, extends the expiration date of the Offer.
(c) Subject to the terms and conditions of this AgreementAgreement and the Offer, unless the Offer is extended in accordance with the terms of this Agreement, initial expiration date for the Offer shall expire at 5:00 p.m.be midnight, New York City time, on the date that is 21 Business Days twentieth (for this purpose calculated in accordance with Section 14d-1(g)(320th) under the ▇▇▇▇ ▇▇▇) business day from and after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated , as determined in accordance with its termsRule 14d-1(g)(3) of the Exchange Act. Notwithstanding the foregoing, Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) (i) extend the Offer from time to time (1) beyond any scheduled expiration date, if, at the scheduled or extended expiration date 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, 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 or any of the conditions to shall not be satisfied and (iii) extend the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) 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 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 required by Applicable Law; provided that Merger Subsidiary 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 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 End Date. Following 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, Merger Subsidiary mayPurchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Law (but in its sole discretion, provide a subsequent offering period no event later than three (“Subsequent Offering Period”3) in accordance with Rule 14d-11 business days after such expiration date of the 1934 ActOffer) (the date of acceptance for payment, the “Acceptance Date,” and the time for acceptance for payment on the Acceptance Date, the “Acceptance Time”). Subject On or prior to the foregoingAcceptance Date, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. 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, 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 Company 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, subject to reduction for any applicable withholding Taxes.
(be) As soon promptly as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that with respect to the Offer. The Schedule TO shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer an offer to Purchase purchase and forms of the related letter of transmittal and summary advertisement, if any, in respect of the all other ancillary Offer documents (collectively, together with any amendments or all amendments, supplements and exhibits thereto, the “Offer Documents”), . Parent and (ii) Purchaser shall cause the Offer Documents to be disseminated to the holders of Company Shares. The Company shall promptly furnish the Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable federal securities laws or reasonably requested by Laws. Parent or Merger Subsidiary for inclusion in and Purchaser, on the Schedule TO or the Offer Documents. Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall be or shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree to take all steps necessary to Purchaser shall cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company the Shares, in each case case, as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SEC, SEC and disseminated to holders of Shares and Parent and Merger Subsidiary Purchaser shall give reasonable and consider in good faith consideration to any comments made by of the Company and its counselCompany. In addition, Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communicationscomments, whether written or oral, that Parent, Merger Subsidiary Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communicationssuch comments, to consult with the Company and (B) a reasonable opportunity its counsel prior to participate in the response of Parent and Merger Subsidiary responding to those any such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given)the Company with copies of all such responses, including by participating with Parent and Merger Subsidiary whether written or their counsel in any discussions or meetings with the SECoral.
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The Offer. (a) Provided that nothing shall have occurred that, had the Offer this Agreement has not been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII, as promptly as practicable and in any event within ten days after the date hereof (or such later of this Agreement, but in no event more than ten Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. ; provided, however, that Merger Subsidiary’s obligation Sub shall not be required to accept for payment and pay for any Company Shares tendered in commence the Offer shall be if the Company is not prepared to file the Schedule 14D‑9 with the SEC on the same day as, and substantially contemporaneously with, Merger Sub’s filing of the Offer Documents with the SEC.
(b) Upon the terms and subject to the condition that there shall be validly tendered conditions set forth in accordance with this Agreement, including the terms prior satisfaction of the Offer, immediately prior to the scheduled expiration of the Offer Minimum Condition (as it may be extended hereunderdefined in Annex I) and not withdrawn, a number the satisfaction or waiver by Merger Sub of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. I (collectively, the “Offer Conditions”), Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment, and promptly thereafter pay for, all Shares validly tendered and not validly 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. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition, and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by Agreement, without the prior written consent of the Company (which the Company may withhold in writingits sole discretion), Merger Sub shall not (A) decrease the Offer Price, (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes ; (D) impose conditions to the Offer in addition to those set forth in Annex Ithe Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or amends (G) extend or otherwise change the conditions set forth Expiration Date in Annex I a manner 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 any manner materially adverse to the holders of Company Shares, and (iii) the its sole discretion). The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms and conditions of this AgreementExpiration Date, unless the Offer this Agreement is extended terminated in accordance with Article VIII.
(d) Unless extended pursuant to, and in accordance with, the terms of this Agreement, the Offer shall expire at 5:00 p.m., midnight (New York City time, ) at the end of the day on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that on which the Offer is commenced. Unless this Agreement or first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer is terminated has been extended beyond the Initial Expiration Date pursuant to, and in accordance with its termswith, 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 Subsidiary Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (1i) ifif on the applicable Expiration Date, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions 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 set forth in clause for successive periods of not more than ten Business Days each (I)(B) of as determined by Merger Sub), or such other period as may be agreed by Parent and the first paragraph of Annex I shall not have been satisfied or waivedCompany, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions Offer Conditions; and (yii) Merger Sub shall extend the End Date, and (2) Offer for any the minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Merger Sub to, and without the staff thereof applicable to Company’s prior written consent (which the Offer or any period required by Applicable Law; provided that Company may withhold in its sole discretion) Merger Subsidiary Sub shall not be required to permitted to, extend the Offer beyond the End Date. Following expiration Date or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the OfferParties 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, Merger Subsidiary mayand in accordance with, the provisions of this Section 1.1(e) without the prior written consent of the Company (which the Company may withhold in its sole discretion).
(f) The Offer Price shall be adjusted proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide a subsequent offering period to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(“Subsequent Offering Period”g) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms hereof. If this Agreement is terminated in accordance with the terms hereof, then Merger Sub shall (and subject to the conditions Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company not acquire any Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration and shall cause any depository acting on behalf of the OfferMerger Sub to return, and (B) in accordance with applicable Law, all Company tendered Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of and any other ancillary Offer documents and instruments pursuant to which the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”)shall be made, and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Sub agree that they shall cause the Schedule TO and all information concerning exhibits, amendments or supplements thereto (collectively, the Company that may be required “Offer Documents”) filed by applicable securities laws or reasonably requested by either Parent or Merger Subsidiary for inclusion Sub with the SEC to comply, in all material respects, with the Schedule TO or the Offer DocumentsExchange Act and other applicable Law. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and 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 Subsidiary agree Sub further shall use their best efforts to take all steps necessary to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. 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 legal counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SECDocuments, and Parent and Merger Subsidiary Sub shall give incorporate into the Offer Documents any reasonable and good faith consideration to any comments made by received from the Company and or its legal counsel, prior to the filing thereof with the SEC. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or other communicationsits staff with respect to the Offer Documents or the Offer. The Company and its legal counsel shall be given reasonable opportunity to review and comment on any proposed responses to any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents, and (B) a Parent and Merger Sub shall incorporate into such responses any reasonable comments received from the Company or its legal counsel, prior to the furnishing of such responses to the SEC. Parent and Merger Sub shall provide the Company and its legal counsel with reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECSEC or its staff.
(i) Parent shall cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
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The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII, as promptly as practicable and in any event within ten days after the date hereof of this Agreement but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved the Company agrees that no Shares owned by the Company in writing, (i) or any of the Minimum Condition may not Subsidiaries of the Company be waived, (ii) no change may be made that changes the form of consideration to be paid tendered pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company Shares, and .
(iiib) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), after the Expiration Date (as defined herein) Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer is in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right, at any time, to in its sole discretion waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, however, without the prior written consent of the Company, Purchaser shall not (A) subject to adjustment pursuant to Section 1.1(f), 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) amend or modify any of the Offer Conditions in a manner that adversely affects holders of Shares generally, (E) change the Minimum Condition, (F) impose conditions to the Offer in addition to the Offer Conditions, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, or (H) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., 9:00 a.m. (New York City time, ) on the date that is 21 twenty one (21) Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, being referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows: (i) if, on the scheduled Expiration Date, the Minimum Condition has not been satisfied 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 from time for one or more periods of not more than five (5) Business Days each (or of not more than ten (10) Business Days each if the only Offer Condition(s) not yet satisfied is the Offer Condition relating either to time the absence of Restraints or to the receipt of required regulatory approvals) (1the length of such periods to be determined by Parent) if, at or such other number of Business Days as the scheduled or extended expiration date parties may agree (subject to the right of the Offer, Purchaser to waive any Offer Condition (other than the Minimum Condition or any Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with Article VIII of the conditions to this Agreement); (ii) Purchaser shall extend the Offer set forth in clause (I)(B) of for the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any minimum period required by any ruleapplicable Law or the applicable rules, regulationregulations, interpretation interpretations or position positions of the SEC or its staff or the staff thereof applicable NYSE; and (iii) if, on the scheduled Expiration Date, each Offer Condition has been satisfied, or waived by Parent or Purchaser if permitted hereunder, and the Marketing Period did not end on or prior to the immediately preceding Business Day, then Purchaser shall have the right in its sole discretion to extend the Offer or any for one period required of not more than ten (10) Business Days (the length of such period to be determined by Applicable LawParent); provided that Merger Subsidiary Parent shall not have the right to extend the Offer pursuant to Section 1.1(e)(iii) if Parent or Purchaser is not then in compliance in all material respects with its obligations under Section 6.16. Purchaser shall not be required to extend the Offer beyond the End Date. Following expiration Date and shall not in any event extend the Offer beyond the End Date without the Company’s prior written consent.
(f) The Offer Price shall be equitably adjusted, without duplication, to reflect the effect of any change in the fully diluted number of shares of capital stock of the Company as a result of any reclassification, stock split (including a reverse stock split) or combination, merger, issuer tender, exchange or readjustment of shares or any stock dividend or stock distribution occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be deemed to permit or authorize the Company to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(g) In the event that this Agreement is terminated pursuant to the terms hereof, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty-four (24) hours of such termination) irrevocably and unconditionally terminate the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 not acquire any 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 Company 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 and cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon as practicable on On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisementother appropriate ancillary offer documents, if any, in respect of and shall cause the Offer Schedule TO (collectively, together with any all exhibits, amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by the Exchange Act and other applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer DocumentsLaws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as soon as reasonably practicable and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Company and its stockholders that may be required in connection with any action contemplated by this Section 1.1(h), including communicating the Offer to the record and beneficial holders of the Shares. Parent and Purchaser shall give (x) the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, SEC and Parent and Merger Subsidiary shall give (y) reasonable and good faith consideration to any comments made the reasonable additions, deletions or changes suggested by the Company and its counselcounsel thereto. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments. Each of Parent and Purchaser shall respond promptly to any comments of the SEC or other communications, its staff with respect to the Offer Documents or the Offer. Parent and Purchaser agree to give (x) the Company and its counsel reasonable opportunity to review any proposed written or oral responses to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (By) a reasonable and good faith consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings substantive telephonic communications with the SECstaff of the SEC related thereto. Notwithstanding the foregoing, the obligations of the Company in the immediately preceding three sentences shall not apply if the Company Board (or a committee thereof) effects a Company Adverse Recommendation Change in accordance with Section 6.3.
(i) 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.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer this Agreement has not been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 7.01, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than ten Business Days following the date as of this Agreement, the parties may mutually agree in writing), Merger Subsidiary shall Purchaser will commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall will be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary 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 conditions to Offer Conditions, (ii) increase the Offer Price and to (iii) make any change in the terms of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided that unless otherwise the Purchaser’s right to waive any Offer Condition is subject to the last paragraph of Annex I hereto; and provided by this Agreement or previously approved by further, that, without the Company in writingprior written consent of the Company, the Purchaser will not:
(i) decrease the Offer Price;
(ii) amend, modify or waive the Minimum Condition may not be waivedor the conditions set forth in clauses (a), (iic)(i) no or (c)(ii) of Annex I;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases ;
(iv) extend or otherwise change the Expiration Time of the Offer Price except as provided herein;
(v) change the Maximum Share Number;
(vi) otherwise amend or modify any of the number other terms of Company the Offer in a manner that adversely affects any holder of Shares sought in its capacity as such, or that would, individually or in the Offer aggregate, materially impair or imposes prevent or delay beyond the End Date (as extended) Purchaser’s ability to consummate the Offer; or
(vii) impose conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company Shares, and (iii) other than the Offer may not be Conditions.
(c) Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall will expire at 5:00 p.m.midnight, New York City time, on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or foregoing: the Offer is terminated in accordance with its terms, Merger Subsidiary shall Purchaser will extend the Offer (i) for one or more consecutive increments of not more than ten (10) Business Days from time to time (1) if, at the then-scheduled or extended expiration date time of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall Conditions has not have been satisfied or waived, from time (to time, until the earliest to occur of (xextent permitted hereby) waived by the satisfaction or waiver of such conditions Purchaser and (y) the End Date, and (2ii) for any period required by (x) any applicable rule, regulation, interpretation or position of the SEC or the staff thereof applicable to or (y) the Offer rules and regulations of the NYSE or any period required by Applicable Law; provided that Merger Subsidiary notwithstanding anything herein to the contrary, in no event shall not Purchaser be required to extend the Offer beyond the earlier of (A) the End DateDate (as extended) and (B) the valid termination of this Agreement in accordance with its terms (such earlier occurrence, the “Extension Deadline”). Following 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. In the event that the Offer is terminated, the Purchaser will not acquire any Shares pursuant to the Offer 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 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, Merger Subsidiary maythe “Acceptance Time”, and the date on which the Acceptance Time occurs, the “Offer Closing Date”), and (ii) promptly thereafter (and in its sole discretion, provide any event no later than one Business Day) pay for such Shares.
(i) If and to the extent that a subsequent offering period (“Subsequent Offering Period”) number of Shares in accordance with Rule 14d-11 excess of the 1934 Act. Subject to the 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 Maximum Share Number are validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration then, in accordance with Section 14(d)(6) of the OfferExchange Act, and (B) all Company the number of Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant by each tendering holder of Shares will be deemed decreased on a pro rata basis (subject to Section 2.01(e)(ii)) based on the number of Shares validly tendered and not withdrawn by each tendering shareholder (with fractional Shares rounded to the nearest whole Share) such that the aggregate number of Shares accepted for payment, and paid for, by the Purchaser in the Offer or validly tendered will be equal to the Maximum Share Number. The Parties acknowledge and agree that if such proration is necessary, the Purchaser will determine the final proration factor in accordance with the immediately preceding sentence (and subject to Section 2.01(e)(ii)) promptly (and in any Subsequent Offering Period shall be paid net to event within three Business Days) after the holder thereof in cash, subject to reduction for any applicable withholding TaxesOffer Closing Date).
(bii) As soon as practicable on The Parties acknowledge and agree that the date of commencement final proration factor for the Offer will be determined in accordance with Rule 14d-8 of the OfferExchange Act.
(f) On the Offer Commencement Date, Parent and Merger Subsidiary shall the Purchaser will (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto thereto, and including all exhibits thereto, the “Schedule TO”) that shall will include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer offer to Purchase and forms purchase, a form of letter of transmittal and a summary advertisement, if any, in respect of the Offer advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable U.S. federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in laws. The Purchaser will use its reasonable best efforts to ensure that the Schedule TO TO, and any amendments or supplements thereto comply in all material respects with the Offer Documentsrules and regulations promulgated by the SEC under the Exchange Act. Each of Parent, Merger Subsidiary 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 and to the extent that such information shall have has become (or has become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary The Purchaser will use its reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and 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 the any Offer Documents Document each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall the Purchaser will give reasonable and good faith consideration to any comments timely made thereon by the Company and its counsel. Parent and Merger Subsidiary shall The Purchaser will provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary the Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall will be given), including by participating using reasonable best efforts to give the Company the opportunity to participate with Parent the Purchaser and Merger Subsidiary or their its counsel in any substantive discussions or meetings with the SEC.
(g) The Purchaser shall use its reasonable best efforts to keep 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 with respect to any material developments with respect thereto and, upon the Company’s written request, use its reasonable 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 not 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 The Merger Agreement provides that nothing shall have occurred that, had the Purchaser will commence the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as practicable and in any event within ten days after the date hereof (or such later date as execution of the parties may mutually agree Merger Agreement, and that, subject to the satisfaction of the Minimum Condition and the other conditions that are described in writing), Merger Subsidiary shall commence (within the meaning Section 14 — “Conditions of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to ,” the Purchaser will accept for payment and pay for any Company all Shares validly tendered and not properly withdrawn in the Offer shall be subject as promptly as practicable after the Purchaser is legally permitted to do so. IDEX and the condition that there shall be validly tendered Purchaser expressly reserved the right to increase the Offer Price or to make any other changes in accordance with the terms and conditions of the Offer, immediately except that without Microfluidics’ prior written approval the Purchaser is not permitted to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) decrease the Minimum Condition may not be waivedOffer Price, (ii) no change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases (iii) reduce the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or imposes Offer, (iv) impose conditions to the Offer in addition to those set forth described in Annex ISection 14 — “Conditions of the Offer,” (v) amend or waive the Minimum Condition, or amends (vi) amend any of the other conditions set forth and requirements to the Offer described in Annex I Section 14 — “Conditions of the Offer” in any a manner materially adverse to Microfluidics’ stockholders or (vii) extend the holders Expiration Date in a manner other than in accordance with the Merger Agreement; provided, however, that if the aggregate amount of Company SharesMicrofluidics’ Expenses related to the transactions contemplated by the Merger Agreement and the other payments described in the Merger Agreement exceeds or is expected to exceed $2,750,000, and (iii) the Purchaser may decrease the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended Price in accordance with the terms of this the Merger Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date . The Merger Agreement provides that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall Purchaser will extend the Offer from time Offer: • to time (1) ifthe extent required by applicable laws or applicable rules, regulations, interpretations or positions of the SEC; • for one or more periods of up to 20 business days each until March 18, 2011, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Expiration Date any of the conditions to the Offer set forth in clause (I)(B) of Offer, other than the first paragraph of Annex I shall Minimum Condition, have not have been satisfied or waivedwaived by IDEX and the Purchaser; • at Microfluidics’ request for a period of up to 10 business days, from time so long as no Acquisition Proposal has been publicly disclosed or communicated to timeMicrofluidics; and • at Microfluidics’ request for a period of three business days, until if by the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Expiration Date, Microfluidics failed to perform or comply with any agreement or covenant contained in the Merger Agreement and (2) did not have at least three business days notice to correct such failure, so long as no Acquisition Proposal has been publicly disclosed or communicated to Microfluidics. After acceptance for any period required by any rule, regulation, interpretation or position payment of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of Shares in the Offer, Merger Subsidiary mayif IDEX, the Purchaser and their subsidiaries and affiliates do not hold, in its sole discretionthe aggregate, at least 90% of the issued and outstanding Shares so as to permit the Purchaser to complete the Short-Form Merger, then the Purchaser may provide a subsequent offering period (“Subsequent Offering Period”Period (and one or more extensions thereof) in accordance with Rule 14d-11 of under the 1934 Exchange Act. Subject The Purchaser is required to the foregoingimmediately accept for payment, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall accept for payment and promptly pay for (A) as promptly as practicablefor, 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.34
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer this Agreement has not been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article 8, as promptly as practicable and in any event within ten days after the date hereof of this Agreement, but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary shall Purchaser will (and Parent will cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment .
(b) Upon the terms and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered conditions set forth in accordance with this Agreement, including the terms prior satisfaction of the Offer, immediately prior to Minimum Condition and the scheduled expiration satisfaction or waiver by Purchaser of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary I (collectively, the “Offer Conditions”), Purchaser will (and Parent will cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment and promptly thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The Offer will be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any of Offer Condition other than the conditions to the Offer Minimum Condition, and to (iii) make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by Agreement, without the prior written consent of the Company (which the Company may withhold in writingits sole discretion), Purchaser will not (A) decrease the Offer Price, (iB) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes (D) impose conditions to the Offer in addition to those set forth in Annex Ithe Offer Conditions, (E) amend or amends modify any of the conditions set forth in Annex I Offer Conditions in any manner materially adverse to the that adversely affects holders of Company Shares, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and (iii) Purchaser may waive the Minimum Condition only with the prior written consent of the Company, which may be granted or withheld in the Company’s sole discretion. The Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated or withdrawn prior to the terms and conditions of this AgreementExpiration Date, unless the Offer this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall will expire at 5:00 p.m., 11:59:59 (New York City time, ) on the date that is 21 Business Days the later of (i) twenty (20) business days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after the date that on which the Offer is commenced. Unless this Agreement or first commenced (within the meaning of Rule 14d-2 under the Exchange Act) and (ii) ten (10) Business Days following the expiration of the Go-Shop Period (such later date, the “Initial Expiration Date”) or, in the event the Offer is terminated has been extended beyond the Initial Expiration Date pursuant to and in accordance with its termsthis Agreement, Merger Subsidiary shall 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) Purchaser will, and Parent will cause Purchaser to, extend the Offer from time to time as follows: (1i) ifif on the applicable Expiration Date, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Purchaser pursuant to this Agreement, waived by Parent or Purchaser, then Purchaser will extend the Offer set forth in clause for successive periods of not more than ten (I)(B10) of Business Days each (as determined by Purchaser), or such other period as may be agreed by Parent and the first paragraph of Annex I shall not have been satisfied or waivedCompany, from time to time, until the earliest to occur of (x) permit the satisfaction or waiver of such conditions Offer Conditions; and (yii) Purchaser will extend the End Date, and (2) Offer for any the minimum period required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) will (A) require Purchaser to, and without the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall Company’s prior written consent Purchaser will not be required to permitted to, extend the Offer 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. Following expiration Neither Parent nor Purchaser will 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.
(f) The Offer Price will be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price will provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) will 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 Purchaser will terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated pursuant to the terms hereof, then Purchaser will (and Parent will cause Purchaser to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 will not acquire any Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration and will cause any depository acting on behalf of the OfferPurchaser to return, and (B) in accordance with applicable Legal Requirements, all Company tendered Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary shall Purchaser will (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, (A) the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, and any other ancillary Offer documents and instruments pursuant to which the Offer will be made, and (B) a notice to the Company’s stockholders informing such stockholders of their rights of appraisal in respect of such Shares in accordance with Section 262 of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”)DGCL, and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company Purchaser agree that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in they will cause the Schedule TO and all exhibits, amendments or supplements thereto (collectively, the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees will promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall will have become false or misleading in any material respect. Parent , and Merger Subsidiary agree to take all steps supplement the information contained in the Offer Documents to include any information that will become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent further will use all reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company will promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s stockholders that is required or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel shall will be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Subsidiary Purchaser will respond promptly to those any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(i) Parent will cause to be provided to Purchaser on a timely basis all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and will cause Purchaser to provide comments perform, on that response (to which reasonable and good faith consideration shall be given)a timely basis, including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECall of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Anadigics Inc)
The Offer. (a) Not later than the first business day after the date of this Agreement, Acquiror, Acquisition Subsidiary and C▇▇▇▇ will make a public announcement of the Offer.
(b) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, 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 Acquisition Subsidiary shall commence (commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than ten (10) business days after the initial public announcement of Acquisition Subsidiary’s intention to commence the Offer, which announcement will be made on November 16, 2007. Merger Subsidiary’s The obligation of Acquisition Subsidiary to accept for payment and pay for any Company C▇▇▇▇ Shares tendered in pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto, including the condition that there a number of C▇▇▇▇ Shares representing that number of C▇▇▇▇ Shares which would equal more than fifty percent (50%) of the C▇▇▇▇ Shares then issued and outstanding on a fully-diluted basis shall be have been validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration date of the Offer (as it may be extended hereunder) Offer, and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding withdrawn (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger ). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the prior written consent of C▇▇▇▇, Acquisition Subsidiary will not (i) decrease the Per Share Amount, (ii) reduce the maximum number of C▇▇▇▇ Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I A hereto in any manner materially adverse to the holders of Company C▇▇▇▇ Shares, and (iiiv) extend the expiration date of the Offer may not be extended beyond the twenty (20) business days following the commencement thereof, except as set forth expressly provided herein, or (vi) make any other change in this Section 2.01(a)the terms or conditions of the Offer which is adverse to the holders of C▇▇▇▇ Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreementthe Offer, unless Acquisition Subsidiary shall, and Acquiror shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all C▇▇▇▇ Shares validly tendered and not withdrawn (the “Acceptance Time”).
(c) On the date of commencement of the Offer, Acquiror and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the Schedule TO, the Offer is extended 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 accordance all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to C▇▇▇▇’▇ stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; except that in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by C▇▇▇▇ for inclusion or incorporation by reference into the Offer Documents. C▇▇▇▇, Acquiror and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading in any material respect, and Acquiror and Acquisition Subsidiary shall 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 C▇▇▇▇ Shares, in each case as and to the extent required by applicable Law. C▇▇▇▇ and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Acquiror and Acquisition Subsidiary shall provide C▇▇▇▇ and its counsel with a copy of, and shall consult with C▇▇▇▇ regarding any telephonic notification of any oral comments, and shall consult with C▇▇▇▇ before responding to any written comments, in each case that Acquiror or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms of this Agreementand conditions hereof, the Offer shall expire at 5:00 p.m.remain open until midnight, New York City timeEastern Time, on the date that is 21 Business Days twenty (for this purpose calculated in accordance with Section 14d-1(g)(320) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of C▇▇▇▇ ▇▇▇, Acquisition Subsidiary may (i) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) ifOffer, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I A shall not have been satisfied or waived, from time to timefor one (1) or more periods of not more than ten (10) business days each, until the earliest to occur of (x) the satisfaction or waiver of such time as such conditions and are satisfied or waived, (yii) extend the End Date, and Offer for one (21) for any period or more periods if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, not more than the period or any period periods required by Applicable Law; provided that Merger Subsidiary shall not be required to such rule, regulation, interpretation or position, or (iii) extend the Offer for one (1) or more periods for an aggregate period of not more than twenty (20) business days beyond the End Date. Following latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of C▇▇▇▇ Shares which would equal more than ninety percent (90%) of the Offerissued and outstanding C▇▇▇▇ Shares on a fully-diluted basis; provided, Merger however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, in its sole discretionwithout the consent of C▇▇▇▇, provide a subsequent offering period (“Subsequent Offering Period”) extend the offer in accordance with Rule 14d-11 of the 1934 Exchange Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoIn addition, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that Per Share Amount may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO increased and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to may be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and extended to the extent required by applicable U.S. federal securities lawsLaw in connection with such increase, in each case without the consent of C▇▇▇▇. The Company and its counsel shall be given a reasonable opportunity to review and comment If on the Schedule TO and initial scheduled expiration date of the Offer Documents or any extension thereof, any applicable waiting period under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by C▇▇▇▇, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and Acquisition Subsidiary each time before agree that if any such document is filed with of the SECconditions set forth in paragraphs (a) or (b) of Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any expiration date of the Offer, then Acquisition Subsidiary shall, and Parent and Merger Acquiror shall, if requested to do so by C▇▇▇▇, cause Acquisition Subsidiary shall give reasonable and good faith consideration to, extend the Offer one time for a period of up to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with ten (A10) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECbusiness days.
Appears in 1 contract
Sources: Merger Agreement (Pfizer Inc)
The Offer. (a) Provided Provided, that nothing this Agreement shall not have occurred thatterminated in accordance with its terms and subject to there being no order, had decree, judgment, injunction or ruling of a Governmental Authority of competent jurisdiction enjoining, restraining or otherwise prohibiting the commencement of the Offer and no Law having been commencedenacted, would give rise entered, enforced, promulgated, amended, issued or deemed applicable to a right to terminate Parent, the Offer pursuant to Company or any of the conditions set forth in Annex I heretosubsidiary or affiliate thereof having such effect, as promptly as practicable Purchaser shall (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 Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer no later than ten (10) business days, after the date of this Agreement. Following such launch, each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer. Merger Subsidiary’s , subject to the terms and conditions hereof.
(b) The obligation of Purchaser to accept for payment payment, purchase and pay for any Company Shares validly tendered in pursuant to the Offer (and not validly withdrawn) shall be subject to the condition that there shall be validly tendered in accordance with satisfaction or waiver pursuant to the terms hereof of (x) the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding condition (the “Minimum Condition”) that at least that number of Company Shares validly tendered and not withdrawn and received by the depositary of the Offer prior to the Expiration Time of the Offer (other than Company Shares tendered by guaranteed delivery that have not yet been “received,” within the meaning of Section 251(h) of the DGCL, by the depositary of the Offer), when added to any Company Shares already owned by Parent or any of its controlled subsidiaries, if any, equal a majority of the outstanding Company Shares as of the Expiration Time; and (y) the other conditions set forth in Annex I. Merger Subsidiary A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any of such condition (other than the conditions Minimum Condition which may not be amended or waived), to increase the Offer Per Share Amount payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, that unless otherwise provided by this Agreement or previously approved by without the prior written consent of the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that (i) decreases the Per Share Amount (except as provided in Section 2.1(i)), (ii) changes the form of consideration to be paid pursuant to payable in the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or (iii) imposes conditions to the Offer in addition to those set forth the Tender Offer Conditions, (iv) decreases the number of Company Shares sought to be purchased in Annex Ithe Offer, (v) extends the Offer other than in a manner pursuant to and in accordance with the terms of Section 2.1(d), or (vi) modifies or amends any condition to the conditions set forth in Annex I Offer in any manner materially that broadens such conditions, makes such conditions more onerous or is adverse to the holders of Company Shares, and .
(iiic) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreementthereof, the Offer shall expire at 5:00 remain open until one minute after 11:59 p.m., New York City timetime (the “Expiration Time”), on at the date that is 21 Business Days end of the twentieth (for this purpose calculated in accordance 20th) business day beginning with Section 14d-1(g)(3(and including) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time commenced (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) determined in accordance with Rule 14d-11 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 2.1(d) or as required by applicable Laws or the interpretations of the 1934 Act. Subject to SEC (in which event the foregoingterm “Expiration Time” shall mean the latest time, and upon the terms and subject to term “Expiration Date” shall mean the conditions of latest date, as 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Sharesextended, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing Upon the terms and subject to the conditions of this Agreement (including Article VII), as promptly as reasonably practicable following the date hereof, but in any event no later than the tenth (10th) Business Day after the initial public announcement of the execution of this Agreement, Outerwall Merger Sub shall, and Parent shall have occurred thatcause Outerwall Merger Sub to, had commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligations of Outerwall Merger Sub to, and of Parent to cause Outerwall Merger Sub to, accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer been commenced, would give rise are subject only to a right the satisfaction or waiver (to terminate the Offer pursuant to any extent permitted under this Agreement) of the conditions set forth in Annex I hereto(as they may be amended in accordance with this Agreement, as promptly as practicable the “Offer Conditions”).
(b) To the extent permitted by Law, Parent and Outerwall Merger Sub reserve the right, at any time, to waive, in whole or in part, any event within ten days after Offer Condition (other than the date hereof (or such later date as the parties may mutually agree in writingMinimum Condition), to increase the Offer Price or to modify the terms of the Offer; provided, however, that, without the prior written consent of the Company, neither Parent nor Outerwall Merger Subsidiary Sub shall commence (A) reduce the maximum number of shares of Common Stock sought to be purchased in the Offer, (B) reduce the Offer Price or change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Condition, (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (E) modify or amend any existing Offer Conditions in a manner that is adverse to the holders of Common Stock, (F) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (G) provide for any “subsequent offering period” within the meaning of Rule 14d-2 14d-11 under the ▇▇▇▇ ▇▇▇Exchange Act or (H) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offerotherwise amend, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly modify or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to supplement the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company SharesCommon Stock or in any manner that materially delays or unreasonably interferes with, and (iii) hinders or impairs the consummation of the Offer. Subject to Section 1.1(g), the Offer may not be extended except as set forth in this Section 2.01(a). Subject terminated prior to the terms and conditions of this Agreementits scheduled Expiration Time, unless the Offer this Agreement is extended validly terminated in accordance with the terms of this Agreement, the Article VII.
(c) The Offer shall initially expire at 5:00 p.m., midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is 21 20 Business Days (for this purpose calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement of the Offer is commenced. Unless this Agreement or (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer is terminated has been extended pursuant to and in accordance with its termsSection 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Outerwall Merger Subsidiary shall Sub may or shall, as applicable, extend the Offer from time to time as follows:
(1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2i) for any the minimum period as required by any applicable Law, including any rule, regulation, interpretation or position of the SEC or SEC, the staff thereof applicable or the NASDAQ Global Select Market (the “Nasdaq”);
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Parent and Outerwall Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Outerwall Merger Sub shall, and Parent shall cause Outerwall Merger Sub to, extend the Offer on one or any more occasions in consecutive periods of five (5) Business Days each (with each such period required to end at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time), on the last Business Day of such period) (or such other duration as may be agreed to by Applicable LawParent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided provided, however, that Outerwall Merger Subsidiary Sub shall not be required to extend the Offer beyond to a date later than the End Date. Following expiration Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a)); provided, however, that if the sole then-unsatisfied Offer Condition is the Minimum Condition, Outerwall Merger Sub shall not be required to extend the Offer for more than four (4) occasions in consecutive periods of five (5) Business Days each (each such period to end at 11:59 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); or
(iii) if at any scheduled Expiration Time, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and/or the Closing (other than as a result of a breach by Parent, Outerwall Merger Sub or Redbox Merger Sub of any of their representations, warranties or covenants set forth in Section 4.7 or Section 5.11 of this Agreement) and (B) Parent, Outerwall Merger Sub and Redbox Merger Sub acknowledge and agree in writing that (1) the Company may terminate this Agreement pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 7.4(c)(ii) and receive the Parent Termination Fee pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 7.6(d)(i) and (2) solely with respect to both (x) any payment of the Parent Termination Fee in accordance with subclause (1) of this Section 1.1(d)(iii) and (y) Outerwall Merger Sub’s obligation, and Parent’s obligation to cause Outerwall Merger Sub, to consummate the Offer, including to accept and thereafter pay for all shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer and in accordance with this Section 1.1, all Offer Conditions set forth (I) in paragraphs (d)(iv) and (f) of Annex I and (II) other than in respect of any willful or material breach (including any Willful and Material Breach) following the date of delivery of such notice, in paragraph (e) of Annex I will be deemed to have been satisfied or waived at the Expiration Time of the Offer after giving effect to any extension pursuant to this Section 1.1(d)(iii) and, for the avoidance of doubt, only at such time, Outerwall Merger Subsidiary may, Sub shall have the right in its sole discretiondiscretion to extend the Offer on up to four more occasions in consecutive periods of five (5) Business Days each (each such period to end at 11:59 p.m., provide New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Outerwall Merger Sub shall not be permitted to extend the Offer to a subsequent offering period date later than the Termination Date (“Subsequent Offering Period”) in accordance with Rule 14d-11 for the avoidance of doubt, as the 1934 ActTermination Date may be extended pursuant to Section 7.2(a)). Subject to the foregoingOuterwall Merger Sub shall not, and upon Parent shall not permit Outerwall Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 1.1(d).
(e) On the terms and subject to the conditions of this Agreement, including satisfaction or waiver of all of the OfferOffer Conditions, (i) at or as promptly as practicable following the Expiration Time, Outerwall Merger Subsidiary Sub shall, and Parent shall cause Outerwall Merger Sub to, irrevocably accept for payment and pay (the time of acceptance for (Apayment, the “Offer Acceptance Time”) as promptly as practicable, all Company Shares shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Outerwall Merger Sub shall, and Parent shall cause Outerwall Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer; provided, promptly after that with respect to shares of Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Outerwall Merger Sub shall be under no obligation to make any payment for such shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. Parent shall provide or cause to be provided to Outerwall Merger Sub, at the final expiration Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any shares of Common Stock that Outerwall Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Outerwall Merger Sub to fulfill all of Outerwall Merger Sub’s obligations under this Agreement.
(Bf) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company Share validly agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be 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 TaxesOffer.
(bg) As soon Unless this Agreement is validly terminated pursuant to Article VII, neither Parent nor Outerwall Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is validly terminated pursuant to Article VII, Outerwall Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Outerwall Merger Sub shall promptly return, or cause any depositary acting on behalf of Outerwall Merger Sub to promptly return, all tendered shares to the tendering stockholders in accordance with applicable Law.
(h) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as practicable on contemplated by this Agreement prior to such action.
(i) On the date of commencement of the Offer, Parent and Outerwall Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that ), which shall include as exhibits contain or incorporated incorporate by reference thereto, the Offer an offer to Purchase purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of other appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to the holders of Company Sharesthe Common Stock as and to the extent required by United States federal securities laws. The Company shall promptly furnish or otherwise make available to Parent and Merger Subsidiary in writing or Parent’s legal counsel upon request all information concerning the Company and its Subsidiaries that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Outerwall Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and each of Parent and Outerwall Merger Subsidiary agree to Sub shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Company Sharesthe Common Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Parent and Outerwall Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents with the SEC or dissemination thereof to the holders of the Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Outerwall Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the such Offer Documents each time before any such document is filed with the SECor response, and Parent and Outerwall Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by such comments. In the Company and its counsel. event that Parent and or Outerwall Merger Subsidiary shall provide the Company and its counsel with (A) Sub receives any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Documents, each shall use its reasonable best efforts to respond as promptly after receipt of those comments or other communications, and (B) a reasonable opportunity as practicable to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECsuch comments.
Appears in 1 contract
Sources: Merger Agreement (Outerwall Inc)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretohereto (the “Offer Conditions”), 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 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation Subsidiary shall use its reasonable best efforts to accept for payment and pay for any Company Shares tendered in commence the Offer within five Business Days after the date hereof. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of Offer Conditions. The date on which Merger Subsidiary commences the Offer (is referred to as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionOffer Commencement Date”.
(b) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement that, without the prior written consent of the Company, which consent may be granted or previously approved withheld by the Company in writingits sole discretion, Merger Subsidiary shall not:
(i) waive or change the Minimum Condition may not be waived, (as defined in Annex I);
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or
(vi) otherwise amend, modify or imposes conditions to supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company the Shares, and .
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days twenty business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger Subsidiary shall extend the Offer (i) from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to Offer Conditions (other than the Offer set forth in clause (I)(BMinimum Condition) of the first paragraph of Annex I shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived, (ii) from time to timetime if, until at the earliest scheduled or extended expiration date of the Offer all of the Offer Conditions (other than the Minimum Condition) have been satisfied or waived but the Minimum Condition is not satisfied, for a period of 5 business days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) (provided that the Offer shall not be required to occur of be extended more than twice in-a-row pursuant to this clause (x) the satisfaction or waiver of such conditions and (y) the End Dateii)), and (2iii) 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 otherwise required by Applicable Law; provided that Merger Subsidiary shall not 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 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. .
(d) Subject to the foregoingterms and conditions set forth in this Agreement, the requirements of Rule 14d-11 of the 1934 Act, and upon the terms and subject to the conditions satisfaction or waiver of the OfferOffer Conditions, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for (A) for, as promptly as practicablepracticable (i) after the expiration of the Offer, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration of the Offer, Offer and (Bii) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to (the holder thereof in cashdate on which Shares are first accepted for payment under the Offer, subject to reduction for any applicable withholding Taxesthe “Acceptance Date”).
(be) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms a form of letter of transmittal and summary advertisement, if any, advertisement reflecting the terms and conditions set forth in respect of the Offer this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish Shares to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable federal securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documentslaws. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Parent or Merger Subsidiary or their respective Affiliates or their counsel may receive from time to time from the SEC or its staff with respect to the Offer, the Schedule TO or Offer Documents promptly but in no event later than one Business Day after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex I heretohereto (other than the conditions described in Paragraphs (i), (ii) ----- - and (iii) of Annex I), as promptly as practicable and in any event within ten days after the date hereof hereof, but in ----- - no event later than seven (or such later date as 7) business days following the parties may mutually agree in writing)public announcement of the terms of this Agreement, Merger Subsidiary Sub shall, and Purchaser shall cause Merger Sub to, commence the Offer at a price of $18.25 per share of Company Common Stock, net to the stockholders of the Company in cash (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer"Offer Price"). Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The ----- ----- Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then directly or indirectly owned by ParentPurchaser and/or Merger Sub, represents at least a majority of all the shares of Company Shares then Common Stock outstanding on a fully-diluted basis (the “"Minimum Condition”"), and (ii) and the ------- --------- other conditions set forth in Annex I. I hereto (collectively with the Minimum ----- - Condition, the "Offer Conditions"). Merger Subsidiary Sub expressly reserves the right to ----- ---------- waive any of the conditions to the Offer Conditions and to make any change in the terms or Offer Conditions, provided that, no change or waiver may be made that, without the -------- ---- prior written consent of the Company, waives or conditions to changes the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company Offer Conditions described in writing, Paragraphs (i) the Minimum Condition may not be waived), (ii), (iv)(a) no change may be made that or (h) of Annex I hereto, changes the ----- - form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or the number of shares of Company Shares Common Stock sought in the Offer or Offer, imposes conditions to the Offer in addition to those set forth in Annex I, I hereto or amends the conditions set forth in Annex I in any manner is otherwise ----- - materially adverse to the holders stockholders of Company Sharesthe Company.
(b) Merger Sub may, and without the consent of the Company,
(iiiA) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) Offer, if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall have not have been satisfied or waived, from until such time as such conditions are satisfied or waived, for one or more periods of not more than ten (10) business days each, but in no event ending later than October 31, 2000 (the "Latest Expiration Date"); provided, that, if ------ ---------- ----- -------- ---- at the scheduled or extended expiration date of the Offer, any of the Offer Conditions set forth in Paragraph (ii) of Annex I hereto shall not have been ----- - satisfied as of such date, then, at the Company's request, Merger Sub shall extend the Offer until such time as such conditions are satisfied or waived, for one or more periods of not more than ten (10) business days each, but in no event ending later than the Latest Expiration Date; provided, further, however, -------- ------- ------- that, notwithstanding this clause (A), if, at the scheduled expiration date of the Offer, all of the Offer Conditions shall have been satisfied or waived other than the Minimum Condition (other than a condition under Paragraphs (iv)(e) or (f) of Annex I under circumstances where the Company is entitled to timecause an extension ----- - pursuant to the next proviso), until Merger Sub may extend (and shall extend, if requested by the earliest to occur of (xCompany) the satisfaction or waiver Offer beyond such scheduled expiration date for only one period of not more than twenty (20) business days from such conditions and (y) date, in the End Dateevent of an extension by Purchaser, and not more than ten (210) calendar days from such date, in the event of an extension requested by the Company; provided, -------- further, however, that notwithstanding this clause (A), if, at the scheduled ------- ------- expiration date of the Offer, all of the Offer Conditions shall have been satisfied or waived (other than the Minimum Condition in circumstances where the Company is entitled to cause an extension pursuant to the preceding proviso) other than the conditions set forth in Paragraphs (iv)(e) and/or (f) of Annex I ----- - and the cure periods set forth in Paragraphs (iv)(e) or (f) of Annex I shall ----- - have not expired, at the request of the Company, Purchaser shall extend the Offer for the remainder of the applicable cure period, but not beyond the Latest Expiration Date;
(B) 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 its staff thereof applicable to the Offer or any period required by Applicable Lawapplicable law;
(C) extend the Offer on one occasion for an aggregate period of not more than ten (10) business days beyond the latest expiration date described in clause (A) or clause (B) of this Section 1.01(b), if on such expiration date all of the conditions to the Offer, including the Minimum Condition, are satisfied or waived but the number of shares of Company Common Stock validly tendered and not withdrawn is less than 90% of the outstanding shares of Company Common Stock on a fully diluted basis; provided that Merger Subsidiary shall not be required to and
(D) extend the Offer beyond the End Datelatest expiration date, if on such expiration date, all of the conditions to the Offer, including the Minimum Condition, are satisfied or waived, to include a "subsequent offering period" as such term is defined in Rule 14d-11 of the rules and regulations of the SEC; provided, that Merger Sub shall not be permitted to extend the Offer pursuant to -------- ---- this clause (D) unless Merger Sub shall, and Purchaser shall cause it to, first accept and promptly pay for all shares of Company Common Stock tendered prior to the expiration of the initial offering period, as it may have been previously extended in accordance with this Section 1.01(b), and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension; provided further, that Merger Sub may not, without the consent of the -------- ------- Company, extend the Offer pursuant to this clause (D) for more than fifteen (15) business days from the expiration of the initial offering period as it may have been previously extended pursuant to this clause (D). Following expiration Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to the terms and conditions of this Agreement, Merger Sub will, and Purchaser will cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 all shares of the 1934 Act. Subject to the 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 Company Shares are validly tendered. The Offer Price payable in respect of each Company Share Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as promptly as practicable after the expiration of the Offer. Purchaser shall provide or validly tendered in cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any Subsequent Offering Period shall be paid net shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the holder thereof in cashOffer. Following the purchase of shares of Company Common Stock pursuant to the Offer, subject Purchaser, Merger Sub and the Company shall use their reasonable best efforts to reduction for any applicable withholding Taxescomplete the transactions contemplated by this Agreement as soon thereafter as possible.
(bc) As soon as practicable on On the date of commencement of the Offer, Parent Purchaser and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO (the "Schedule -------- TO") with respect to the Offer (together with all amendments such Schedule TO and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, such documents included -- therein pursuant to which the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectivelywill be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), and (ii) cause the . The Offer Documents shall comply ----- --------- as to be disseminated to holders form in all material respects with the requirements of Company Shares. The Company shall promptly furnish to Parent the Exchange Act (as defined herein) and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the holders of shares of Company Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of ParentPurchaser, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent Purchaser and Merger Subsidiary Sub 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 of Company SharesCommon Stock, in each case as as, and to the extent required extent, required, by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC, and Parent and SEC or disseminated to the holders of shares of Company Common Stock. Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that ParentPurchaser, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECsuch comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have --------- been terminated in accordance with its terms and none of the conditions set forth in Annex A hereto shall have occurred thator be continuing, had Parent shall cause ------- Merger Sub to, and Merger Sub shall, commence the Offer been commencedas promptly as reasonably practicable after the date hereof, would give rise but in no event later than five (5) Business Days after the date hereof. The obligation of Merger Sub to a right accept for payment Shares tendered pursuant to terminate the Offer pursuant shall be subject to (i) the condition that at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, 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 or warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer and have an exercise price of $10.00 per Share or less) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and (ii) there ----------------- shall not have occurred or be continuing any of the conditions set forth in Annex I A hereto, 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 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary Parent expressly reserves the right to waive any of such condition, ------- to increase the conditions to the Offer Per Share Amount, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that by Parent without the prior written consent of the Company which (A) decreases the Per Share Amount or changes the form of consideration to be paid pursuant to payable in the Offer, decreases (B) waives the Offer Price or Minimum Condition, (C) reduces the maximum number of Company Shares sought to be purchased in the Offer or Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex I, A hereto or (E) amends any term of the conditions set forth in Annex I Offer in any other ------- manner materially adverse to the holders of Company the Shares, and (iii) . Notwithstanding the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger Subsidiary shall Sub may, without the consent of the Company, (i) extend the Offer from time to time beyond the scheduled expiration date, which shall be twenty (120) Business Days following the commencement of the Offer, if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Merger Sub's obligation to accept for payment Shares shall not have been be satisfied or waived, from time to time, until (ii) extend the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) 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 thereof, applicable to the Offer Offer, or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to (iii) extend the Offer for an aggregate period of not more than ten (10) Business Days beyond the End Date. Following expiration latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the Offerconditions to Merger Sub's obligations to accept for payment Shares are satisfied or waived, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period but the number of Shares validly tendered and not withdrawn pursuant to the Offer totals less than ninety percent (“Subsequent Offering Period”90%) in accordance with Rule 14d-11 of the 1934 Actissued and outstanding Shares on a fully diluted basis. Subject The Per Share Amount shall, subject to any applicable withholding of Taxes, be net to the foregoingsellers of the Shares in cash, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Parent shall cause Merger Subsidiary shall Sub to, and Merger Sub shall, accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the Offer, promptly after applicable rules of the final expiration SEC and the terms and conditions of the Offer, and 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 Securities Exchange Act of 1934, as amended (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tenderedthe "Exchange Act"). The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant If the payment equal to the Offer or validly tendered Per Share ------------ Amount in any Subsequent Offering Period cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid net all transfer and other Taxes required by reason of the payment of such amount to a Person other than the registered holder of the certificate surrendered, or shall have established to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date satisfaction of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) Sub that shall include as exhibits such Taxes either have been paid or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Sharesare not applicable. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested If this Agreement is terminated by Parent or by the Company, Parent shall cause Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of ParentSub to, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause Sub shall, terminate promptly the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 11.01, as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than five Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary shall, and Parent shall cause it to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the OfferOffer at the Offer Price. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. II hereto (the “Offer Conditions”). The date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer is referred to as the “Offer Commencement Date.”
(b) Parent and Merger Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer, including raising the Offer Price; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, neither Parent nor Merger Subsidiary shall:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases in the Offer Price or (other than by adding consideration);
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend, accelerate or otherwise change the expiration date of the Offer except as otherwise provided herein; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to that adversely affects the holders of Company the Shares, and .
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 20 Business Days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or foregoing, but subject to the Offer is terminated Parties’ respective termination rights in accordance with its termsSection 11.01, (i) Merger Subsidiary shall, and Parent shall cause it to, extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law and (ii) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for one or more periods (each not exceeding ten days in length except as required by Applicable Law) to permit such Offer Condition to be satisfied; provided that in no event shall Merger Subsidiary shall not be required to extend the Offer beyond the End Date. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(c)), but only if this Agreement is validly terminated in accordance with Article 11.
(d) Subject to the terms and conditions set forth in this Agreement and subject to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price for such Shares in accordance with the Offer and this Agreement.
(e) Following expiration of the Offer, Merger Subsidiary may, may in its sole discretiondiscretion and shall, if requested by the Company, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to Act if, immediately following the foregoingAcceptance Time, and upon the terms and subject to the conditions of the OfferParent, Merger Subsidiary and their respective Subsidiaries and Affiliates beneficially own less than 90% of the Shares outstanding at that time (which Shares beneficially owned shall include Shares tendered in the Offer and not withdrawn). Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for (A) all Shares as promptly as practicable, all Company Shares they are validly tendered during such Subsequent Offering Period 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 Company Shares are validly tenderedevent in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer Price payable in respect shall terminate immediately upon a termination of each Company Share validly tendered and not withdrawn this Agreement 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 TaxesArticle 11.
(bf) As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference theretoexhibits, the Offer to Purchase and forms Purchase, a form of letter of transmittal transmittal, a form of summary advertisement and summary advertisement, if any, in respect of any schedule or form required to be filed pursuant to the Offer Instructions to Schedule TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of Company SharesShares to the extent required by Applicable Law (including the 1934 Act). The Offer shall be conducted in compliance with Applicable Law (including the 1934 Act). The Company shall promptly furnish to supply Parent and Merger Subsidiary in writing writing, for inclusion in the Offer Documents, all information concerning the Company that may required under the 1934 Act to be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion included in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. .
(g) The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (Ai) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, communications and (Bii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(h) Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect, and each of Parent and Merger Subsidiary 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 the holders of Shares, in each case as and to the extent required by Applicable Law (including the 1934 Act).
(i) Parent shall cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform all of Merger Subsidiary’s obligations under this Agreement on a timely basis.
Appears in 1 contract
The Offer. (a) Provided that nothing Subject to the provisions of this Agreement, as promptly as practicable but in no event later than five business days after the date of the public announcement by Lucent and the Company of this Agreement, Acquisition shall, and Lucent shall have occurred thatcause Acquisition to, had commence the Offer. The initial expiration date for the Offer been commencedshall be the 20th business day following the commencement of the Offer. The obligation of Acquisition to accept for payment, would give rise and pay for, any Shares tendered pursuant to a right to terminate the Offer pursuant shall be subject only to any of the conditions set forth in Annex I heretoExhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Acquisition in its sole discretion; provided that, as promptly as practicable and in any event within ten days after without the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms prior written consent of the OfferCompany, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and Acquisition shall not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (iias defined in Exhibit A)) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless . Acquisition expressly reserves the Offer is extended in accordance with right to modify the terms of this Agreementthe Offer, except that, without the consent of the Company, Acquisition shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer shall expire at 5:00 p.m.Price, New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3iii) under the ▇▇▇▇ ▇▇▇) after the date that amend or add to the Offer is commenced. Unless this Agreement or Conditions any terms that are adverse to the holders of the Shares, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer is terminated or (vi) amend any other term of the Offer in accordance with its termsany manner adverse to the holders of the Shares. Notwithstanding the foregoing, Merger Subsidiary shall Acquisition may, without the consent of the Company, (A) extend the Offer from time to time (1) ifOffer, if at the scheduled or extended expiration date of the Offer, the Minimum Condition or Offer any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I Conditions shall not have been be satisfied or waived, from until such time to time, until the earliest to occur of (x) the satisfaction or waiver of as such conditions and are satisfied or waived, (yB) extend the End Date, and (2) Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by Applicable Lawapplicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Lucent and Acquisition agree that if all the Offer Conditions are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Acquisition shall extend the Offer from time to time until such conditions are satisfied or waived; provided that Merger Subsidiary Acquisition shall not be required to extend the Offer beyond the End Date. Following expiration of the OfferSeptember 30, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act1999. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Acquisition shall, and Lucent shall cause Acquisition to, accept for payment payment, and pay for (A) as promptly as practicablefor, all Company Shares validly tendered and not withdrawn pursuant to the OfferOffer that Acquisition becomes obligated to accept for payment and pay for, pursuant to the Offer as promptly as practicable after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on On the date of commencement of the Offer, Parent Lucent and Merger Subsidiary Acquisition shall (i) file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer (together with all amendments Offer, which shall contain an offer to purchase and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer (collectivelyshall be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"). Lucent and Acquisition agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934 (the "Exchange Act"), and (ii) cause the rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders make the statements therein, in light of Company Shares. The Company shall promptly furnish the circumstances under which they were made, not misleading, except that no representation or warranty is made by Lucent or Acquisition with respect to Parent and Merger Subsidiary in writing all information concerning supplied by the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary any of its stockholders specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. Each of ParentLucent, Merger Subsidiary Acquisition and the Company agrees agree promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent , and Merger Subsidiary Lucent and Acquisition further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company Sharesthe Company's stockholders, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, SEC or dissemination to the stockholders of the Company. Lucent and Parent and Merger Subsidiary shall give reasonable and good faith consideration Acquisition agree to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communicationsLucent, whether written or oral, that Parent, Merger Subsidiary Acquisition or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments such comments.
(c) Lucent shall provide or other communicationscause to be provided to Acquisition on a timely basis the funds necessary to accept for payment, and (B) a reasonable opportunity pay for, any Shares that Acquisition becomes obligated to participate in accept for payment, and pay for, pursuant to the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to Within a right to terminate the Offer pursuant to any reasonable period of the conditions set forth in Annex I hereto, as promptly as practicable and in any event within ten days time after the date hereof (or such later date as of the parties may mutually agree in writing)execution of this Agreement, Merger Subsidiary Sub shall, as soon as practicable, but in no event later than the tenth Business Day after the date of this Agreement, commence and Parent shall cause Merger Sub to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) Exchange Act), the Offer. The obligation of Merger Subsidiary’s obligation Sub to commence the Offer and to accept for payment payment, and pay for any Company Shares tendered in pursuant to the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunderi) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other those conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive A (any of which may be waived by Merger Sub in its sole discretion; provided, however, that, without the conditions to consent of the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided Company, except as contemplated by this Agreement or previously approved by the Company in writingSection 2.01(e), (i) Merger Sub shall not waive the Minimum Condition may not be waivedTender Condition), and (ii) no change may be made that changes the form receipt by Merger Sub of consideration to be paid pursuant a certificate signed by duly authorized officers of the Company (as provided in Annex A(c)(iii)) to the Offer, decreases effect that the Offer Price or the number of Company Shares sought in the Offer or imposes conditions condition to the Offer in addition to those obligation of the Merger Sub set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially adverse to the holders of Company Shares, and (iiiA(c)(iii) the Offer may not be extended except as set forth in this Section 2.01(a)has been satisfied. Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms provisions of this Agreement, the Offer shall initially expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) twentieth business day from and after the date that the Offer is commenced. Unless , including the date of the commencement of the Offer as the first business day in accordance with Rule 14d-2, unless this Agreement or the Offer is terminated in accordance with its termsArticle VIII, Merger Subsidiary shall extend in which case the Offer from time to time (1whether or not previously extended in accordance with the terms hereof) if, at shall expire on such date of termination.
(b) As soon as practicable on the scheduled or extended expiration date of commencement of the Offer, Parent and Merger Sub shall file with the Minimum Condition SEC with respect to the Offer a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "SCHEDULE TO"), which will comply in all material respects with the provisions of applicable federal securities laws and will contain an offer to purchase relating to the Offer (the "OFFER TO PURCHASE") and forms of related letters of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "OFFER DOCUMENTS"). Parent and Merger Sub shall make all filings required by applicable state law relating to the Offer (the "STATE FILINGS") as and when required by applicable state law. Parent and Merger Sub will deliver copies of the proposed forms of the Schedule TO, the Offer Documents and the State Filings (as well as any change thereto) to the Company within a reasonable time prior to the commencement of the Offer for prompt review and comment by the Company and its counsel. Parent and Merger Sub will provide the Company and its counsel in writing any comments that Merger Sub, Parent or their counsel may receive from the SEC or its staff or any applicable state authority with respect to the Offer Documents or the State Filings promptly after the receipt thereof. Parent and Merger Sub shall promptly correct any information in the Schedule TO, the Offer Documents or the State Filings that shall have become false or misleading in any material respect and take all steps necessary to cause such Schedule TO, Offer Documents or State Filings as so corrected to be filed with the SEC and any applicable state authority and disseminated to the stockholders of the Company, as and to the extent required by applicable law. Parent and Merger Sub will provide copies of any amendments or supplements to the Offer Documents, the Schedule TO or the State Filings prior to any filing of such amendments or supplements with the SEC or any applicable state authority in order to provide the Company and its counsel with a reasonable opportunity to review and comment.
(c) Each of Parent and Merger Sub expressly reserves the right to modify the terms of the Offer, except that neither Parent nor Merger Sub shall, without the prior written consent of the Company, (i) decrease the price per Company Shares payable in the Offer, (ii) change the form of consideration payable in the Offer, (iii) decrease the number of Company Shares sought pursuant to the Offer (except as contemplated by Section 2.01(e)), (iv) change or modify the conditions to the Offer set forth in clause a manner adverse to the Company or holders of Company Shares, (I)(Bv) impose additional conditions to the Offer, or (vi) amend any term of the first paragraph Offer in any manner adverse to the Company or holders of Company Shares. So long as this Agreement is in effect and the conditions contained in Annex I A have not been satisfied or waived, Parent shall cause Merger Sub to cause the Offer not to expire until 30 Business Days after such time as all of the conditions contained in Annex A have been satisfied or waived, from time to timeexcept for the Minimum Tender Condition. Merger Sub may, until without the earliest to occur consent of the Company, further extend the Offer, (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2i) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any and (ii) from time to time, for an aggregate period required by Applicable Law; provided that Merger Subsidiary shall of not be required to extend the Offer more than ten (10) business days (for all such extensions under this clause (ii)) beyond the End Datelatest expiration date that would be permitted under the preceding sentence or clause (i) of this sentence. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) Subject to and in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and conditions of the Offer and this Agreement (but subject to the conditions right of the Offertermination in accordance with Article VIII), Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (A) as promptly as practicablefor, in accordance with the terms of the Offer, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly Offer as soon as practicable after the final expiration of the Offer. In addition to the foregoing, and (B) all Merger Sub may provide for a "subsequent offering period" to the extent provided in Rule 14d-11 under the Exchange Act after the purchase of Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer 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 TaxesOffer.
(bd) As soon as practicable on On or prior to the date of commencement of that Merger Sub becomes obligated to accept for payment and pay for Company Shares pursuant to the Offer, Parent will provide or cause to be provided to Merger Sub the funds necessary to pay for all Company Shares that Merger Sub becomes obligated to accept for payment and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect pay for pursuant to the Offer Offer.
(together with all amendments e) Notwithstanding anything to the contrary in this Agreement, Merger Sub may waive the Minimum Tender Condition without the consent of the Company as long as Merger Sub is permitted by applicable law to and supplements thereto and including exhibits thereto, does exercise the “Schedule TO”Options (as defined in the Stockholders Agreements) that shall include as exhibits or incorporated by reference thereto, immediately following the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect consummation of the Offer (collectively, together with any amendments or supplements theretoand acquires title to all of the Company Shares subject thereto and as a result of such exercise and purchase of Shares under the Offer, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders aggregate amount of Company Shares. The Company shall promptly furnish to Parent and Shares acquired by Merger Subsidiary in writing all information concerning Sub exceeds the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECMinimum Tender Condition.
Appears in 1 contract
The Offer. (a) Provided that nothing The Offeror shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, 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 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and publicly announce its intention to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writingan offer and, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 subject to the terms and conditions set forth below, shall make an offer (the "OFFER") to purchase all of this Agreementthe Shares, unless including all Shares issuable upon the exercise of stock options ("OPTIONS") granted pursuant to the Company's Stock Option Plan prior to the date hereof and all Shares issuable pursuant to the Convertible Debentures. The terms of the Offer is extended shall include any amendments to, or extensions of, such Offer made in accordance with the terms of this Agreement, including, without limitation, removing or waiving any condition or extending the date by which Shares may be deposited. The Offer shall permit a Shareholder who holds Shares indirectly through a holding company (a "HOLDCO") to accept the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date by depositing all of the Offer, the Minimum Condition or any shares of the conditions Holdco (the "HOLDCO SHARES") to the Offer set forth in clause (I)(B) of for consideration equal to the first paragraph of Annex I shall not consideration such Shareholder would have been entitled to receive had the Shares owned by such Holdco been deposited directly under the Offer (the "HOLDCO ALTERNATIVE"), provided that the Holdco Alternative will only be available to any particular Shareholder if the terms and conditions which are set out in Schedule C are satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on The Offeror shall offer to acquire the date Shares for $4.33 per Share, in cash subject to downward adjustment if the Board of commencement of the OfferDirectors declares, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO sets aside or pays any dividend or other distribution payable in cash, stock, property or otherwise, with respect to the Offer Shares; which adjustment shall be equal to the amount of such dividend or other distribution.
(together with all amendments c) Subject to subsections 1.1(g), 1.2(b) and supplements thereto and including exhibits thereto1.2(d), the “Schedule TO”) that Offeror shall include as exhibits or incorporated by reference thereto, mail the Offer to Purchase and forms of letter accompanying take-over bid circular, related letter(s) of transmittal and summary advertisement, if any, in respect notice(s) of the Offer guaranteed delivery (collectivelysuch documents, together with the Offer, being referred to herein as the "BID CIRCULAR") in accordance with applicable Laws to each registered Shareholder as soon as reasonably practicable and in any amendments event not later than 11:59 p.m. (Toronto time) on July 13, 2003 ("LATEST MAILING DATE"); provided, however, that if the mailing of the Bid Circular is delayed by reason of (i) an injunction or supplements theretoorder made by a court or regulatory authority of competent jurisdiction or (ii) the Offeror not having obtained any regulatory waiver, consent or approval which is necessary to permit the “Offeror to mail the Offer Documents”)then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, then the Latest Mailing Date shall be extended for a period ending on the earlier of: (i) 11:59 p.m. (Toronto time) on August 12, 2003 and (ii) cause the Offer Documents tenth business day following the date on which such injunction or order ceases to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws effect or reasonably requested by Parent such waiver, consent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parentapproval is obtained, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and as applicable.
(d) Prior to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause printing of the Schedule TO as so corrected to be filed with Bid Circular, the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Offeror shall provide the Company and its counsel with an opportunity to review and comment on it, recognizing that whether or not such comments are appropriate will be determined by the Offeror, acting reasonably.
(e) The Offer will be made in accordance with applicable Laws and shall expire no earlier than 12:01 a.m. (local time) on the 36th day after the day (the "MAILING DATE") that the Offer is mailed to Shareholders, subject to the right of the Offeror to extend the period during which Shares and Holdco Shares may be deposited under the Offer (as it may be amended, the "EXPIRY TIME"). The terms of the Offer shall comply with the terms of this Agreement. The Offer shall be subject only to the conditions set forth in Schedule A annexed hereto. The Offeror agrees that provided all of the conditions to the Offer set out in Schedule A hereto have been satisfied or waived by the Offeror, the Offeror shall take up and pay for all of the Shares and Holdco Shares tendered under the Offer as soon as reasonably possible and in any event not later than three business days following the time at which it becomes entitled to take up such Shares and Holdco Shares under the Offer pursuant to applicable Laws.
(f) It is understood and agreed that the Offeror may, in its sole discretion, modify or waive any term or condition of the Offer, provided that the Offeror will not, without the prior written consent of the Company, (i) increase the Minimum Tender Condition, (ii) decrease the consideration per Share, (iii) change the form of consideration payable under the Offer (other than to add additional consideration or the option of Shareholders to choose one or more alternative forms of consideration in addition to the form of consideration contemplated herein), or (iv) impose additional conditions to the Offer.
(g) The obligation of the Offeror to make the Offer by mailing the Bid Circular to Shareholders is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of the Offeror and any or all of which may be waived by the Offeror in whole or in part in its sole discretion without prejudice to any other rights it may have under this Agreement or otherwise and which shall be deemed to have been waived by the commencement of the Offer:
(i) the obligations of the Offeror hereunder shall not have been terminated pursuant to Section 6.1;
(ii) no circumstance, fact, change, event or occurrence shall have occurred that would render it impossible for one or more of the conditions set out on Schedule A hereto to be satisfied;
(iii) the Board of Directors shall have prepared and approved in final form, printed for distribution to Shareholders and delivered to the Offeror for mailing with the Bid Circular a directors' circular (the "DIRECTORS' CIRCULAR"), which circular shall contain a unanimous recommendation that Shareholders accept the Offer and a copy of the fairness opinion of CIBC World Markets Inc. opining that the consideration offered under the Offer is fair, from a financial point of view, to Shareholders;
(iv) no cease trade order, injunction or other prohibition at Law shall exist against the Offeror making the Offer or taking up or paying for Shares and Holdco Shares deposited under the Offer;
(v) neither the Company nor the Offeror shall have received any notice (written or oral) from any Governmental Authority indicating that any School's license, permit, accreditation, approval or registration pursuant to (A) any comments applicable vocational and/or career training legislation or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) the federal or provincial Canada student loan program, will be suspended or revoked;
(vi) the Offeror shall have received all waivers, rulings or orders necessary for the making of the Offer or to mail to Shareholders the Bid Circular from all applicable securities commissions or other securities or stock exchange regulatory authorities, including a reasonable opportunity ruling which provides that subsection 97(2) of the Securities Act (Ontario) and the equivalent provisions of the securities laws of the other provinces and territories of Canada are not violated by the employment arrangements proposed for Company employees;
(vii) the Company shall have complied with its obligations under this Agreement;
(viii) all representations and warranties of the Company:
(A) that are qualified by a reference to participate Material Adverse Effect shall be true and correct in all respects at the time of the making of the Offer; and
(B) that are not qualified by a reference to a Material Adverse Effect shall be true and correct in all respects at the time of the making of the Offer unless the failure to be true or correct has not had or would not reasonably be expected to have, a Material Adverse Effect (and, for this purpose, any reference to "material" or other concepts of materiality in such representations and warranties shall be ignored);
(ix) there shall not have occurred or arisen (or there shall not have been generally disclosed or discovered, if not disclosed in writing to the Offeror) any change (or any condition, event or development involving a prospective change) in the response business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Company or any of its Subsidiaries considered on a consolidated basis which, in the sole judgment of the Offeror, individually or in the aggregate, has or may have a material adverse effect either on the value of the Company and its Subsidiaries considered on a consolidated basis or on the value of the Shares to the Offeror;
(x) the Board of Directors shall have passed and not revoked a resolution terminating all Options effective upon the take-up and payment by the Offeror of Shares under the Offer provided that at such time the Offeror has taken up and paid for, either directly or indirectly, at least 66 2/3% of the outstanding Shares on a fully-diluted basis;
(xi) the Board of Directors shall have passed and not revoked a resolution suspending the operation of the Employee Stock Purchase Plan such that no Shares shall be issued pursuant to the Employee Stock Purchase Plan while it is suspended;
(xii) the corporate governance committee of the Board of Directors shall have passed and not revoked a resolution terminating the Employee Stock Purchase Plan effective upon the take-up and payment by the Offeror of Shares under the Offer provided that at such time the Offeror has taken up and paid for, either directly or indirectly, at least 66 2/3% of the outstanding Shares on a fully-diluted basis; and
(xiii) in the event that the escrow agreement to be entered into pursuant to the indemnity agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 1234512 Ontario Inc., Golconda Inc., the Company, the Parent and Merger Subsidiary the Offeror (substantially in the form delivered to those comments such parties) has not been executed and to provide comments on that response delivered at the time of the entering into of this Agreement, the parties (to which reasonable and good faith consideration shall be given)other than the Offeror, including by participating with the Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECescrow agent thereunder) shall have executed and delivered such escrow agreement.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretohereto (the “Offer Conditions”), as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of Offer Conditions. The date on which Merger Sub commences the Offer (is referred to as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionOffer Commencement Date”.
(b) and the other conditions set forth in Annex I. Merger Subsidiary Sub expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or
(vi) otherwise amend, modify or imposes conditions to supplement any of the Offer Conditions or other terms of the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any manner materially that broadens such conditions or is otherwise adverse to the holders of Company the Shares, and .
(iiic) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the The Offer shall expire at 5:00 p.m., 11:59 p.m. (New York City time, ) on the date that is 21 Business Days 20 business days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section (in which event the term “Expiration Date” shall mean the earliest time and date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Sharesextended, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (AdvancePierre Foods Holdings, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable and after the date hereof, but in any no event within ten later than five business days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s The Offer shall, unless extended as provided below, expire 20 business days after the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for any Company Shares tendered in pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the “Minimum Condition”conversion of any convertible securities or upon the exercise of any options, warrants or rights) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex I. Merger Subsidiary A hereto. Purchaser expressly reserves the right to waive any of such condition, to increase the conditions to price per Share payable in the Offer Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by provided, however, that, without the Company in writingconsent of Company, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes which decreases the form of consideration to be paid pursuant to price per Share payable in the Offer, decreases which reduces the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex IA hereto or modifies such conditions, or amends which changes the conditions set forth form of consideration payable in Annex I in any manner materially adverse the Offer. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the holders of Company Sharesseller in cash, 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, Merger Subsidiary without limitation, the Minimum Condition), Purchaser shall accept for payment and pay for (A) pay, as promptly as practicablepracticable after expiration of the Offer, for 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 Company Shares are validly tenderedwithdrawn. The Offer Price payable in respect may not be extended for more than 20 days beyond its original scheduled expiration date unless any of each Company Share validly tendered and not withdrawn pursuant the conditions to the Offer or validly tendered shall not have been satisfied; provided, however, in any Subsequent Offering Period the event Purchaser desires to extend the Offer beyond July 31, 1997, in the event the proposed length of the extension is, in the aggregate, more than three days Company shall be paid net have the right to consent to such longer extension. Parent agrees to cause Purchaser to, and Purchaser agrees to use its reasonable best efforts to, consummate the holder thereof in cashOffer as soon as legally permissible, subject to reduction its right to extend for any applicable withholding Taxes20 additional days as provided above.
(b) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Subsidiary Purchaser shall (i) file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”14D-1") that with respect to the Offer. The Schedule 14D-1 shall include as exhibits contain or incorporated shall incorporate by reference theretoan offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectivelysuch other documents, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), . Company and (ii) cause its counsel shall be given an opportunity to review the Offer Documents prior to be disseminated to holders of Company Sharestheir filing with the SEC. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Schedule TO and the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect. misleading, and Parent and Merger Subsidiary Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 1 contract
Sources: Merger Agreement (Digex Inc)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) the Company is prepared (in accordance with Section 2.2(b)) to file the Schedule 14D-9 on the same date as the Purchaser commences the Offer and (iii) none of the events set forth in clauses (i) through (vii) of Annex I shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoor be continuing, as promptly as practicable (and in any event within ten days seven (7) Business Days) after the date hereof hereof, the Purchaser shall (or such later date as and Parent shall cause the parties may mutually agree in writing)Purchaser to) commence, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934 (the “Exchange Act”), the Offer to purchase all the outstanding Shares at the Offer Price, subject to: (i) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares condition that there being validly tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately and not properly withdrawn prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a Expiration Date that number of Company Shares thatwhich, together with the Company number of Shares (if any) then beneficially owned by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly owned by Parentindirectly, sole voting power, represents at least a majority of all Company the Shares then outstanding (determined on a fully diluted basis as of immediately following the Acceptance Time (excluding from the number of tendered Shares, but not from the outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee)) and entitled to vote in the election of directors or (if a greater majority) on the adoption of this Agreement (collectively, the “Minimum Condition”); and (ii) the satisfaction, or written waiver (where permitted by applicable Law) by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or written waiver (where permitted by applicable Law) by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall (and Parent shall cause and enable the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Purchaser is legally permitted to do so under applicable Law in accordance with the Exchange Act. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 3.2(f).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that 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. Merger Subsidiary Parent and the Purchaser expressly reserves reserve the right to waive (where permitted by applicable Law), in their sole discretion, in whole or in part, any of the conditions set forth on Annex I, to increase the Offer and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless otherwise provided contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) decrease the Minimum Condition may not be waivedOffer Price, (ii) no change may be made that changes the form of consideration to be paid pursuant to payable in the Offer, decreases (iii) reduce the Offer Price or the maximum number of Company Shares sought to be purchased in the Offer Offer, (iv) amend or imposes waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in any a manner materially adverse to the holders of Company Shares, and Shares or (iiivi) extend the Offer may not be extended except as set forth Expiration Date in this Section 2.01(a). Subject to the terms and conditions of a manner other than in accordance with this Agreement, unless the Offer is .
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., p.m. (New York City time, ) on the date that is 21 twenty-one (21) Business Days following the commencement of the Offer (for this purpose calculated the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after this Agreement, the date that on which the Offer is commenced. Unless this Agreement has been so extended (the Initial Expiration Date, or such later date to which the Offer is terminated Initial Expiration Date has been extended in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offerthis Agreement, the Minimum Condition “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in clause (I)(BAnnex I) of the first paragraph of Annex I shall have not have been satisfied or, where permitted by applicable Law, waived in writing by Parent or waivedthe Purchaser, from time the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer on one or more occasions, for successive periods of up to timetwenty (20) Business Days each, until the earliest in order to occur of (x) permit the satisfaction or waiver of such conditions conditions. In addition, the Purchaser shall (and (yParent shall cause the Purchaser to) extend the End Date, and (2) Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the SEC U.S. Securities and Exchange Commission (the “SEC”) or its staff. Notwithstanding the staff thereof applicable to foregoing, the Offer or any period required by Applicable Law; provided that Merger Subsidiary Purchaser shall not be required to extend the Offer for any reason beyond September 17, 2011 (the End “Outside Date. Following expiration of ”).
(f) Notwithstanding the Offerforegoing, Merger Subsidiary mayif necessary to obtain sufficient Shares to reach the Short Form Threshold, in its sole discretionthe Purchaser shall (and Parent shall cause the Purchaser to), provide for a “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of not more than twenty (20) Business Days in the 1934 Act. aggregate; provided, however, that if the Purchaser exercises the Top Up Option pursuant to Section 2.4, it shall not be required to provide for a “subsequent offering period.” Subject to the foregoing, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment payment, and pay for (A) as promptly as practicablefor, all Company Shares that are 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 Company 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, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before during any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel“subsequent offering period”. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.The
Appears in 1 contract
Sources: Merger Agreement
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had been terminated in accordance with Article VIII and that the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoCompany has complied with its obligations under Section 1.2, as promptly as practicable and after the date of this Agreement but in any no event within more than ten (10) business days after the date hereof of this Agreement (or such later date as the parties may mutually agree in writingagree), Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer .
(as it may be extended hereunderb) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement and to the satisfaction, or waiver (to the extent permitted under this Agreement) 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(d), Purchaser shall promptly on or after the Expiration Date accept for payment (such time of acceptance for payment, the “Offer Acceptance Time”) and pay (by delivery of funds to the Depository Agent) 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 on or prior to the Expiration Date 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 Offer Acceptance Time.
(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, unless and with consummation thereof subject to the Minimum Condition and the other Offer 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 of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which consent may be withheld in the sole discretion of the Company), Purchaser shall not (A) decrease the Offer Price other than in accordance with Section 1.1(f), (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) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the terms of the Offer or the Offer Conditions in a manner that adversely affects holders of Shares, (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 Expiration Date, unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City one minute after 11:59 p.m. (Boston time, ) on the date that is 21 Business Days twenty (for this purpose 20) business days (calculated in accordance with Section Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇Exchange Act) after following the date that commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer is commenced. Unless this Agreement or (the Offer is terminated “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) Notwithstanding any provision to the contrary contained in this Agreement but subject to the parties’ respective rights to terminate the Agreement pursuant to Article VIII, (i) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, Purchaser may, in its termsdiscretion (and without the consent of the Company or any other Person), Merger Subsidiary extend the Offer on one or more occasions, for an additional period of up to 10 business days per extension, to permit such Offer Condition to be satisfied, (ii) Purchaser shall extend the Offer from time to time for: (1A) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any ruleLaw, regulation, any interpretation or position of the SEC or the staff thereof or any rules and regulations of the NASDAQ Stock Market (“NASDAQ”) applicable to the Offer, and (B) periods of up to 10 business days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act or any applicable foreign Antitrust Law shall have expired or been terminated, (iii) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, at the request of the Company, Purchaser shall extend the Offer on one or more occasions for an additional period required by Applicable Lawof up to 10 business days per extension, to permit such Offer Condition to be satisfied, and (iv) if the Company has delivered a Change of Status Notice to Parent, and the Company so requests, Purchaser shall extend the Offer on one or more occasions so that the Expiration Date does not occur earlier than two (2) business days immediately after the expiration of the Notice Period or Intervening Event Notice Period, as applicable; provided provided, however, that Merger Subsidiary in no event shall not Purchaser: (1) be required to extend the Offer beyond the earlier to occur of (x) the valid termination of this Agreement in compliance with Section 8.1 and (y) the End Date (such earlier date, the “Extension Deadline”), (2) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company, or (3) be permitted, without the prior written consent of the Company, which shall not be unreasonably withheld, or required by the Company, to extend the Offer by periods exceeding an aggregate of 20 business days in the event that (x) the Company has not delivered to Parent a Change of Status Notice and (y) each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived as of any then scheduled Expiration Date and the Minimum Condition shall not have been satisfied as of such scheduled Expiration Date. Following expiration Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the OfferCompany except in the event that this Agreement is terminated pursuant to Section 8.1.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, Merger Subsidiary mayreverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its sole discretionsecurities that is prohibited by the terms of this Agreement.
(g) Nothing in this Section 1.1 shall be deemed to impair, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 limit or otherwise restrict the right of the 1934 ActCompany, Purchaser or Parent to terminate this Agreement pursuant to Section 8.1. Subject In the event that this Agreement is terminated pursuant to the foregoingterms hereof, Purchaser shall (and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Parent shall accept for payment and pay for (Acause Purchaser to) as promptly as practicable, all Company Shares validly tendered practicable irrevocably and not withdrawn pursuant to unconditionally terminate the Offer, promptly after the final expiration of the Offer, and (B) all Company shall not acquire any Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net Shares to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to Purchase and related documents to be disseminated to holders of Company Shares. The Company shall promptly furnish , in each case as and to Parent and Merger Subsidiary in writing all information concerning the Company that may be extent required by applicable securities laws or reasonably requested by Law. Parent or Merger Subsidiary for inclusion in and Purchaser agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company and its shall promptly furnish in writing or otherwise make available to Parent, Purchaser or Parent’s legal counsel shall be given a reasonable opportunity in writing any information concerning the Acquired Entities and, to review and comment on the Schedule TO and extent reasonably available to the Offer Documents each time before any such document is filed with the SECCompany, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments their stockholders or other communications, whether written or oral, equity owners that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff is required in connection with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including any action contemplated by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.this Section 1.1
Appears in 1 contract
Sources: Merger Agreement (Datawatch Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretohereto (the “Offer Conditions”) (other than the conditions set forth in clause (i) and subclause (D) of clause (ii)), as promptly as practicable and in any event within ten days after the date hereof (or such hereof, but in no event later than 10 Business Days following the date as the parties may mutually agree in writing)of this Agreement, Merger Acquisition Subsidiary shall, and Parent shall cause it to, commence (within the meaning of Rule 14d-2 under the ▇1▇▇▇ ▇▇▇) the OfferOffer to purchase for cash all of the outstanding Shares at the Offer Price. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the The Offer shall be subject to the condition that there shall be validly tendered in accordance with Minimum Condition and the terms satisfaction, or waiver by Parent or Acquisition Subsidiary, of the Offer, immediately prior to other Offer Conditions. The date on which Acquisition Subsidiary commences (within the scheduled expiration meaning of Rule 14d-2 under the 1▇▇▇ ▇▇▇) the Offer (is referred to as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum ConditionOffer Commencement Date”.
(b) Parent and the other conditions set forth in Annex I. Merger Acquisition Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to the Offer, including raising the Offer Price; provided that unless otherwise provided by this Agreement or previously approved by that, without the Company in writingprior written consent of the Company, neither Parent nor Acquisition Subsidiary shall:
(i) waive or change the Minimum Condition may not be waived, Condition;
(ii) no decrease the Offer Price (except pursuant to Section 2.01(e)(ii);
(iii) change may be made that changes the form of consideration to be paid pursuant to in the Offer, decreases the Offer Price or ;
(iv) decrease the number of Company Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or
(vi) impose additional Offer Conditions or imposes conditions to otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex Ia manner that adversely affects, or amends the conditions set forth in Annex I in any manner materially adverse would reasonably be expected to adversely affect, the holders of Company Shares, and the Shares generally.
(iiic) the Offer may not be Unless extended except as set forth provided in this Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m.midnight, New York City time, on the date that is 21 thirty-four (34) Business Days (for this purpose calculated as set forth in accordance with Section Rule 14d-1(g)(3) under the ▇1▇▇▇ ▇▇▇) after the date that Offer Commencement Date. Notwithstanding the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger (A) Acquisition Subsidiary shall, and Parent shall cause it to, extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable LawLaw and (B) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Acquisition Subsidiary shall, and Parent shall cause it to, extend the Offer for one or (as needed) more periods of five (5) Business Days each (or such shorter period as the Company agrees to or such longer period as the parties hereto may agree); provided provided, however, that Merger in no event shall Acquisition Subsidiary be required to extend the Offer to a date later than the End Date. Notwithstanding the foregoing clause (B), if at the end of the initial expiration date (or the expiration date as extended in accordance with Section 2.01(f), if necessary), all of the Offer Conditions are satisfied other than the Minimum Condition, then Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one additional period of five (5) Business Days, and if at the end of such five (5) Business Day period, the Minimum Condition continues to not be satisfied, Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one more period of five (5) Business Days; provided, however that if at the end of any expiration date as of which the Offer is scheduled to expire, (i) all of the Offer Conditions are satisfied other than the Minimum Condition and (ii) an Acquisition Proposal shall have been publicly announced or a tender offer or exchange offer shall have been commenced by a Third Party (and in each case not withdrawn), Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one or (as needed) more periods of five (5) Business Days each (or such shorter period as the Company agrees to or such longer period as the parties hereto may agree) until the earlier of (i) February 28, 2014 and (ii) five (5) Business Day after the date such Acquisition Proposal or tender or exchange offer has been withdrawn, after which Acquisition Subsidiary shall not be required to extend the Offer beyond ; provided further, that in no event shall Acquisition Subsidiary be required to extend the Offer to a date later than the End Date. Following The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(c)), but only if this Agreement is validly terminated in accordance with Article 11.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction of the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, Acquisition Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the 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 Offer (the final expiration of time at which Shares are first accepted for payment under the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tenderedthe “Acceptance Time”). The Offer Price payable in respect obligation of each Company Share validly Acquisition Subsidiary to accept for payment and pay for all Shares tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net subject only to the holder thereof in cash, satisfaction of the Minimum Condition and the satisfaction or waiver of each of the other Offer Conditions (and shall not be subject to reduction any other conditions). Promptly after the Acceptance Time, Acquisition Subsidiary shall pay the Offer Price for any applicable withholding Taxessuch Shares.
(be) As soon as practicable on On the date of commencement of Adjustment Date, the Offer, Company shall deliver to Parent and Merger Acquisition Subsidiary shall its calculation of (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), Estimated World Wide Cash Amount and (ii) cause the Offer Documents to be disseminated to holders World Wide Cash Amount Statement reflecting such Estimated World Wide Cash Amount, and reasonable supporting documentation for each of Company Sharesthe foregoing. The Company and Parent shall promptly furnish work in good faith to resolve any disputes regarding the Company’s calculations of the Estimated World Wide Cash Amount and World Wide Cash Amount Statement within two (2) days following the date such calculations were received by Parent, and in the event such agreement is reached, shall within such two (2) day period mutually amend (if necessary) the World Wide Cash Amount Statement originally delivered by the Company to reflect any agreed-upon changes thereto. If the parties are not able to reach agreement within such two (2) day period, within one day after the end of the four (4) Business Day period starting the day after the Adjustment Date, the Company shall instead deliver to Parent and Merger Acquisition Subsidiary its calculation of (i) the Actual World Wide Cash Amount and (ii) World Wide Cash Amount Statement reflecting such Actual World Wide Cash Amount, and reasonable supporting documentation for each of the foregoing. The Company and Parent shall work in writing all information concerning good faith to resolve any disputes regarding the Company’s calculation of the Actual World Wide Cash Amount and World Wide Cash Amount Statement within two (2) days following the date such calculations were received by Parent. The Company, shall within such two (2) day period revise (if necessary) the World Wide Cash Amount Statement originally delivered by the Company to reflect any changes to the Actual World Wide Cash Amount and/or World Wide Cash Amount Statement that may the Company in good faith determines appropriate (in each case taking into account any such disputes). For the avoidance of doubt, but without limiting the other provisions and definitions of this Agreement, the final determination of the Actual World Wide Cash Amount and the World Wide Cash Adjusted Amount shall be required made solely by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion the Company in accordance with such provisions and definitions. Following final determination of the World Wide Cash Adjusted Amount set forth in the Schedule TO World Wide Cash Amount Statement (whether calculated using the Estimated World Wide Cash Amount or Actual World Wide Cash Amount, as determined as set forth above), the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use Price shall be adjusted as follows in the Schedule TO and circumstances set forth below:
(i) if the World Wide Cash Adjusted Amount is greater than $9,350,000, the Offer Documents Price shall be increased, so that from and after the Adjustment Date the Offer Price shall be equal to (x) $2.00, plus (y) an amount equal to the quotient (rounded to the nearest whole $0.01) of (A) the amount by which the World Wide Cash Adjusted Amount exceeds $9,300,000 divided by (B) the number of Shares issued and outstanding as of the Adjustment Date on a Fully Diluted basis.
(ii) if the World Wide Cash Adjusted Amount is less than $9,250,000, the Offer Price shall be decreased, so that from and after the Adjustment Date the Offer Price shall be equal to (x) $2.00, less (y) an amount equal to the quotient (rounded to the nearest whole $0.01) of (A) the amount by which the World Wide Cash Adjusted Amount is less than $9,300,000 divided by (B) the number of Shares issued and outstanding as of the Adjustment Date on a Fully Diluted basis. For the avoidance of doubt, if the World Wide Cash Adjusted Amount is equal to or greater than $9,250,000 and less than or equal to $9,350,000, the Offer Price shall not be adjusted.
(f) In the event the Offer Price is adjusted pursuant to Section 2.01(e), then Acquisition Subsidiary shall, and Parent shall cause it to, no later than 9:00 AM New York Time on the Business Day following final determination of the World Wide Cash Adjusted Amount as set forth in the World Wide Cash Amount Statement (as revised, if applicable) (x) provide notice of such adjustment to the Company’s stockholders pursuant to and in compliance with Rule 14e-1(b) under the 1934 Act and any other applicable rules and regulations of the SEC or other Applicable Law and (y) to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO date as so corrected to be filed with the SEC and of which the Offer Documents is scheduled to expire is less than ten (10) Business Days (calculated as so corrected set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) following such notice, extend the Offer such that the expiration date is ten (10) Business Days following such notice. In the event the Offer Price is not adjusted pursuant to be disseminated Section 2.01(e), then Acquisition Subsidiary shall, and Parent shall cause it to, no later than 9:00 AM New York Time on the Business Day following final determination of the World Wide Cash Adjusted Amount as set forth in the World Wide Cash Amount Statement (as revised, if applicable) (x) provide notice of the foregoing to holders of Company Shares, in each case as the Company’s stockholders and (y) to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on that the Schedule TO and date as of which the Offer Documents each time before any is scheduled to expire is less than five (5) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) following such document notice, extend the Offer such that the expiration date is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with five (A5) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SECBusiness Days following such notice.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VII, as promptly as practicable and in any event within ten days after the date hereof of this Agreement but in no event more than ten (or such later 10) Business Days after the date as the parties may mutually agree in writing)of this Agreement, Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in .
(b) In accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless and subject only to the satisfaction or waiver (to the extent such waiver is permitted by this Agreement and applicable Law) of the conditions set forth in Annex I (collectively, the “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Merger Sub shall (and Parent shall cause Merger Sub to), at or as promptly as practicable following the Expiration Time, irrevocably accept for payment (such time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer is extended Acceptance Time (and in any event within three (3) Business Days) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the exclusive right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, the Termination Condition or the conditions set forth in clause (b) or (d) of Annex I and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that notwithstanding anything to the contrary in this Agreement, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (A) except as otherwise required or expressly permitted by Section 1.01(f), decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, the holders of Company Common Stock, (F) amend, modify or waive the Minimum Condition, the Termination Condition or the conditions set forth in clause (b) or (d) of Annex I, (G) except as otherwise required or expressly permitted by Section 1.01(e), extend or otherwise change the Expiration Time or (H) otherwise amend, modify or supplement any of the other terms of the Offer in any manner that adversely affects, or would reasonably be expected to adversely affect, the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(d) The Offer shall expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is twenty business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.01(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to each party hereto’s respective rights to terminate the Agreement pursuant to Article VII:
(i) If, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then (x) Merger Sub may, in its sole discretion (and without the consent of the Company or any other Person) and (y) upon the Company’s written request, 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 (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such increment) in order to permit the satisfaction of such Offer Condition(s); provided, however, that (i) Merger Sub shall not be required to extend the Offer to a date later than the Outside Date and Merger Sub shall not be permitted to extend the offer to a date later than the Outside Date without the prior written consent of the Company and (ii) if at any then scheduled expiration of the Offer, all of the Offer Conditions (other than the Minimum Condition and any Offer Conditions that is 21 are by their nature to be satisfied at the Offer Acceptance Time) have been satisfied or waived (to the extent permitted by this Agreement and applicable Law) and the Minimum Condition has not been satisfied, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) extend the Offer for more than three additional consecutive increments of ten (10) Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3or such shorter periods as may be agreed to by the Company and Merger Sub);
(ii) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at for the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC or its staff or The NASDAQ Global Select Market (the staff thereof applicable “NASDAQ”) or its staff; and
(iii) Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.01(e).
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required Acceptance Time, and such adjustment to extend the Offer beyond Price shall provide to the End Date. Following expiration holders of shares of Company Common Stock the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period same economic effect as contemplated by this Agreement prior to such action.
(“Subsequent Offering Period”g) In the event that this Agreement is terminated in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the OfferArticle VII, Merger Subsidiary Sub shall accept for payment (and pay for (AParent shall cause Merger Sub to) as promptly as practicable, all Company Shares validly tendered practicable (and not withdrawn pursuant to the Offer, promptly after the final expiration in any event within one (1) Business Day of such termination) irrevocably and unconditionally terminate the Offer, and (B) all shall not acquire any shares of Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or validly Merger Sub to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net shares of Company Common Stock to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits will contain or incorporated incorporate by reference thereto, the Offer to Purchase and forms form of the related letter of transmittal and summary advertisement, if any, in respect of (the Offer (collectivelySchedule TO, together with any all documents included therein pursuant to which the Offer will be made, and all amendments or and supplements thereto, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer DocumentsCommon Stock. Each of Parent, Merger Subsidiary Sub and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent such party becomes aware that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary agree further agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of shares of Company SharesCommon Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub or Parent’s legal counsel any information concerning the Company and the Company’s Subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents or that is reasonably requested by Parent or Merger Sub in connection with any action contemplated by this Section 1.01(h). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with (A) any comments or other communications, whether written or oral, (including a summary of any oral comments) that Parent, Merger Subsidiary Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, such comments. Each of Parent and (B) Merger Sub shall give the Company and its counsel a reasonable opportunity to participate in the formulation of any written response to any comments of the SEC or its staff with respect to the Offer Documents, and Parent and Merger Subsidiary Sub shall respond promptly to those comments any such comments.
(i) Each of Parent, Merger Sub, the Company and the paying agent with respect to provide comments on that response (to which reasonable and good faith consideration the Offer shall be given)entitled to deduct and withhold from the amounts otherwise payable pursuant to the Offer such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986 (the “Code”) and the rules and regulations promulgated thereunder, including by participating with Parent or under any provision of state, local or non-U.S. Tax Law. To the extent amounts are so withheld and Merger Subsidiary or their counsel paid over to the appropriate Governmental Authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in any discussions or meetings with the SECrespect of which such deduction and withholding was made.
Appears in 1 contract
Sources: Merger Agreement (MyoKardia, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Article VII, had within ten Business Days after the Offer been commenceddate of this Agreement, would give rise Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d‑2 under the Exchange Act) the Offer.
(b) In accordance with the terms and conditions of this Agreement, and subject only to a right the satisfaction or waiver (to terminate the Offer pursuant to any extent such waiver is permitted by applicable Law) by Merger Sub of the conditions set forth in Annex I hereto(collectively, the “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Merger Sub shall (and Parent shall cause Merger Sub to), at or as promptly as practicable and following the Expiration Time, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in any event within ten days three Business Days (calculated as set forth in Rule 14d‑1(g)(3) under the Exchange Act) thereafter) pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer at a price per share of Company Common Stock equal to the Offer Price, net to the seller in cash, without interest. The consummation of the Offer, and the obligation of Merger Sub to accept for payment and pay for Company Common Stock tendered pursuant to the Offer, shall be subject only to the terms and conditions of this Agreement and to the satisfaction, or waiver (to the extent such waiver is permitted by applicable Law) by Merger Sub, of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right (in its sole discretion) to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer that are in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, (F) amend, modify or supplement any of the Offer Conditions in a manner that adversely affects the holders of Company Common Stock or that makes such Offer Conditions more difficult to satisfy without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (G) except as otherwise required or expressly permitted by Section 1.01(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time unless this Agreement is terminated in accordance with Article VII.
(d) The Offer shall expire at one minute after 11:59 p.m. New York City time on the date hereof that is 20 Business Days (or such later date as calculated in accordance with Rule 14d‑1(g)(3) under the parties may mutually agree in writing), Merger Subsidiary shall commence Exchange Act) following (and including the day of) the commencement (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Exchange Act) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in of the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms (such initial expiration date and time of the Offer, immediately prior the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.01(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to the scheduled expiration of parties’ respective rights to terminate the Agreement pursuant to Article VII, Merger Sub may, without the Company’s consent, or shall, as applicable, extend the Offer from time to time as follows (and Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as it may be extended hereunderrequired or expressly permitted pursuant to this Section 1.01(e)):
(i) and not withdrawnif, a number of Company Shares thatat the then-scheduled Expiration Time, together with each Offer Condition (other than the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) shall have been satisfied or waived by Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law) and the other conditions set forth in Annex I. Minimum Condition shall not have been satisfied, then Merger Subsidiary expressly reserves the right Sub may elect to waive any of the conditions to the Offer (and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved if so requested by the Company in writing, (ishall) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases extend the Offer Price on one or more occasions in consecutive increments of such duration as requested by the number of Company Shares sought in (or if not so requested by the Offer or imposes conditions Company, as determined by Merger Sub), but no more than ten Business Days each (each such increment to the Offer in addition to those set forth in Annex I, or amends the conditions set forth in Annex I in 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 this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire end at 5:00 p.m., New York City time, on the date that is 21 last Business Days Day of such increment) (for this purpose calculated or such other duration as may be agreed to by Parent and the Company) in accordance with Section 14d-1(g)(3) under order to permit the ▇▇▇▇ ▇▇▇) after the date satisfaction of such Offer Condition(s); provided that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsCompany shall not request Merger Sub to, and Merger Subsidiary Sub shall not be required to, extend the Offer from time pursuant to time (1) ifthis sentence on more than three occasions; provided, at the scheduled or extended expiration date of the Offerfurther, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary Sub shall not be required to extend the Offer beyond to a date later than the End Outside Date. Following expiration ;
(ii) if, at the then-scheduled Expiration Time, any Offer Condition (other than the Minimum Condition) shall not have been satisfied or waived by Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub may elect to (and if so requested by the Company shall) extend the Offer on one or more occasions in consecutive increments of such duration as requested by the Company (or if not so requested by the Company, as determined by Merger Sub), but no more than ten Business Days each (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date; and
(iii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the Offer, Merger Subsidiary maySecurities and Exchange Commission (the “SEC”) or its staff or the Nasdaq Global Select Market (the “Nasdaq”) or its staff (including in order to comply with Exchange Act Rule 14e-1(b) in respect of any change in the Offer Price). Notwithstanding the foregoing, in its sole discretionthe event that, provide as a subsequent offering period (“Subsequent Offering Period”) result of the extension of the Offer in accordance with Rule 14d-11 the provisions of this Section 1.01(e), the Expiration Time would occur on the date that is the Outside Date, the Expiration Time shall instead occur at 5:00 p.m., New York City time, on the Business Day immediately preceding the Outside Date.
(f) If between the date of this Agreement and the Offer Acceptance Time the outstanding shares of Company Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class by reason of the 1934 Act. Subject occurrence or record date of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change, the Offer Price shall be equitably adjusted to reflect such stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change; provided that this sentence shall not be construed to permit the foregoing, and upon Company to take any action with respect to its securities that is prohibited by Section 5.01.
(g) In the terms and subject to the conditions of the Offerevent that this Agreement is terminated in accordance with Article VII, Merger Subsidiary Sub shall accept for payment (and pay for (AParent shall cause Merger Sub to) as promptly as practicable, all Company Shares validly tendered practicable (and not withdrawn pursuant to the Offer, promptly after the final expiration in any event within two Business Days of such termination) irrevocably and unconditionally terminate the Offer, and (B) all shall not acquire any shares of Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or validly Merger Sub to return, in accordance with applicable Law, all tendered in any Subsequent Offering Period shall be paid net shares of Company Common Stock to the holder thereof in cash, subject to reduction for any applicable withholding Taxesregistered holders thereof.
(bh) As soon promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Subsidiary Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall will include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms Purchase, form of related letter of transmittal transmittal, summary advertisement and summary advertisement, if any, in respect of other ancillary documents and instruments pursuant to which the Offer will be made (collectivelythe Schedule TO, together with any amendments or supplements theretoall documents included therein pursuant to which the Offer will be made, the “Offer Documents”), ) and (ii) cause the Offer Documents to be disseminated to holders of shares of Company SharesCommon Stock, in each case, as and to the extent required by applicable federal securities Laws. Merger Sub may, but shall not be required to, provide guaranteed delivery procedures for the tender of shares of Company Common Stock in the Offer provided, however, that if Merger Sub provides guaranteed delivery procedures, for purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub shall include for purposes of its determination thereof shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures (and such shares of Company Common Stock shall be deemed to be validly tendered) if and only if shares of Company Common Stock subject to such guarantees have been received by, or on behalf of, ▇▇▇▇▇▇ Sub as of the Expiration Time. The Company shall promptly furnish provide to Parent and or Merger Subsidiary in writing Sub all information concerning the Company that and the Company’s Subsidiaries as may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary Sub in connection with the Offer Documents and shall otherwise reasonably assist and cooperate with Parent and Merger Sub in the preparation of the Offer Documents and the resolution of any comments thereto received from the SEC. No representation, warranty or covenant is made by Parent or Merger Sub with respect to information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. Each of Parentthe Company, Parent and Merger Subsidiary and the Company agrees promptly to Sub shall correct any information provided by it for use in the Schedule TO and the Offer Documents as promptly as reasonably practicable if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause ▇▇▇▇▇▇ Sub shall notify the Schedule TO as so corrected to be filed with Company promptly on the receipt of any comments or communications from the SEC (whether written or oral) and of any request by the SEC for amendments or supplements to the Offer Documents and shall supply the Company with copies of all written correspondence between Parent, Merger Sub or any of their respective Representatives, on the one hand, and the SEC, on the other hand, with respect to the Offer Documents. Parent and ▇▇▇▇▇▇ Sub shall use their respective reasonable best efforts to respond as so corrected promptly as reasonably practicable to be disseminated to holders of Company Shares, in each case as any comments received from the SEC concerning the Offer Documents and to resolve such comments with the extent required by applicable U.S. federal securities lawsSEC. The Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or responding to any comments from the SEC with respect thereto, Parent and Merger Sub shall provide the Company and its counsel shall be given with a reasonable opportunity to review and comment to propose comments on the Schedule TO and the Offer Documents each time before any such document is filed with the SECor response, and which Parent and Merger Subsidiary Sub shall give reasonable and consider in good faith consideration to any comments made faith.
(i) As reasonably requested by the Company and its counsel. Company, Parent and Merger Subsidiary shall provide keep the Company and its counsel with (A) any comments or other communicationsreasonably informed on a reasonably current basis of the status of the Offer, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff including with respect to the Schedule TO or Offer Documents promptly after receipt number of those comments or other communications, shares of Company Common Stock that have been validly tendered and (B) a reasonable opportunity to participate not validly withdrawn in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings accordance with the SECterms of the Offer and, on the Company’s written request, provide (or cause its transfer agent to provide) to the Company as soon as reasonably practicable with the most recent report in its possession from the Depository Agent detailing the number of shares of Company Common Stock that have been validly tendered and not validly withdrawn in accordance with the terms of the Offer.
Appears in 1 contract
Sources: Merger Agreement (PhenomeX Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had been terminated in accordance with the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any provisions of Section 7.1 and that none of the conditions events set forth in Annex I heretoA shall have occurred or are continuing, as promptly as reasonably practicable and in any event within ten days after the date hereof of this Agreement (or such later but in no event more than ten (10) Business Days after the date as the parties may mutually agree in writingof this Agreement), Merger Subsidiary Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934 (the "Exchange Act")) the Offer. Merger Subsidiary’s .
(b) The obligation of Purchaser to accept for payment and to pay for any Company Shares Common Stock tendered in pursuant to the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary A. Purchaser expressly reserves the right to waive any of increase the conditions to the Offer and Per Share Amount or to make any change other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the provisions of this Agreement; provided provided, however, that unless otherwise provided by this Agreement or previously approved by without the Company in writingprior written consent of the Company, (i) the Minimum Tender Condition may not be amended or waived, ; and (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offerpaid, decreases the Offer Price Per Share Amount or the number of shares of Company Shares Common Stock sought in the Offer or Offer, imposes conditions to the Offer in addition to those set forth in Annex IA, or amends extends the conditions expiration date of the Offer beyond the Initial Expiration Date (except as provided in (c), below). Notwithstanding anything to the contrary contained in this Agreement, except as set forth in Annex I in any manner materially adverse to the holders of Company SharesSection 7.1, and (iii) the Offer may not be extended except withdrawn prior to the Initial Expiration Date (or any rescheduled expiration date) of the Offer.
(c) The Offer shall initially be scheduled to expire twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) thereof (the "Initial Expiration Date"). If, at any then-scheduled expiration date, the conditions to the Offer have not been satisfied or waived (other than conditions which are not capable of being satisfied), Purchaser shall be entitled to extend the Offer for such amount of time as set forth Purchaser reasonably believes is necessary to cause such Offer conditions to be satisfied; provided, however, that Purchaser shall not be entitled to extend the Offer to any date occurring after sixty (60) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the "Outside Date") without the prior written consent of the Company. Notwithstanding anything to the contrary contained in this Section 2.01(a). Subject Agreement (i) Purchaser may, without the consent of the Company or any other Person extend the Offer for any period required by any rule or regulation of the SEC applicable to the terms and conditions Offer, (ii) if, as of this Agreementthe scheduled or extended expiration date, unless the sole condition remaining unsatisfied is the Minimum Tender Condition, Purchaser shall, upon the written request of the Company, extend the Offer is extended in accordance with for an additional period of not more than five (5) Business Days (a "Minimum Condition Extension"); provided, however that if, upon expiration of the terms of this AgreementMinimum Condition Extension, the Minimum Tender Condition has not been met, Purchaser may, without the consent of the Company or any other Person extend the Offer shall expire at 5:00 p.m., New York City timefor an additional period of not more than fifteen (15) Business Days; (iii) if, on the date that Initial Expiration Date, the sole condition remaining unsatisfied is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) the failure of the waiting period under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement HSR Act to have expired or the Offer is terminated in accordance with its termsbeen terminated, Merger Subsidiary then Purchaser shall extend the Offer from time to time (1) if, at until the scheduled or extended expiration date of expiration or termination of the Offerapplicable waiting period under the HSR Act; and (iv) Purchaser may, without the Minimum Condition consent of the Company or any of the conditions other Person, elect to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) provide 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; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”and one or more extensions thereof) under Rule 14d-11 promulgated under the Exchange Act of not more than twenty (20) Business Days to meet the objective that there be validly tendered, in accordance with Rule 14d-11 the terms of the 1934 ActOffer, prior to the expiration of the Offer (as so extended), and not withdrawn a number of shares of Company Common Stock, which together with the shares of Company Common Stock then owned by Parent and Purchaser, represent at least ninety percent (90)% of the then outstanding shares of Company Common Stock at the Offer Acceptance Time (including following the exercise of the Merger Option at the Parent or Purchaser's option). Subject to Notwithstanding the foregoing, and in no event shall Purchaser be required or entitled to extend the Offer pursuant to this Section 1.1(c) to any date occurring after the Outside Date.
(d) 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, Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicablepracticable after expiration of the Offer, for all shares of Company Shares Common Stock validly tendered and not withdrawn pursuant to the Offer, promptly after . Notwithstanding the final expiration 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 of Company Common Stock in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment of the Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing the shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and (B) that the person requesting such payment shall have paid all Company Shares validly tendered in any Subsequent Offering Periodtransfer and other Taxes required by reason of payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant or shall have established to the Offer satisfaction of Purchaser that such Taxes either have been paid 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 Taxesare not applicable.
(be) As soon promptly as reasonably practicable on the date of commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer, Parent and Merger Subsidiary Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule TO”") that with respect to the Offer. The Schedule TO shall include as exhibits contain or incorporated shall incorporate by reference theretoan offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectivelysuch other documents, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”"), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary Purchaser further agree to take all steps necessary to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of shares of Company SharesCommon Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any prior to such document is documents being filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration SEC or disseminated to any comments made by the holders of shares of Company and its counselCommon Stock. Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications, and (B) shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Merger Subsidiary or Purchaser to those comments and to provide comments on that response such comments.
(to which reasonable and good faith consideration shall be given)f) In accordance with the provisions of Section 8.14, Parent hereby guarantees Purchaser's obligations under this Section 1.1, including by participating with Parent and Merger Subsidiary or their counsel in without limitation, Purchaser's obligation to pay for any discussions or meetings with Company Common Stock tendered pursuant to the SECOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing Subject to the conditions of this Agreement, as promptly as practicable (but in no event later than ten (10) Business Days after the date of this Agreement), Merger Sub shall, and Parent shall have occurred thatcause Merger Sub to, had commence the Offer been commencedunder the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligations of Merger Sub to, would give rise and of Parent to a right cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to terminate the Offer pursuant are subject only to any of the conditions set forth in Annex I heretoExhibit B (the “Offer Conditions”). The initial expiration date of the Offer (the “Initial Expiration Date”) shall be midnight (New York City time) on the twentieth (20th) Business Day following commencement of the Offer (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as promptly as practicable amended (together with the rules and in any event within ten days after regulations promulgated thereunder, the date hereof (or such later date as the parties may mutually agree in writing“Exchange Act”), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer). Merger Subsidiary’s obligation Sub expressly reserves the right to accept for payment and pay for waive, in whole or in part, any Company Shares tendered in condition to the Offer shall be subject to the condition that there shall be validly tendered in accordance with or modify the terms of the Offer, immediately prior to except that, without the scheduled expiration written consent of the Offer Company, Merger Sub shall not (as it may be extended hereunderA) and not withdrawn, a reduce the number of Company Shares that, together with shares of the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant Common Stock subject to the Offer, decreases (B) reduce the Offer Price except in accordance with Section 1.1(e), (C) waive or amend the number of Company Shares sought in the Offer or imposes conditions Minimum Tender Condition, add to the Offer in addition to those set forth in Annex I, Conditions or amends the conditions set forth in Annex I modify any Offer Condition in any manner materially adverse to the holders of the Company SharesCommon Stock, and (iiiD) the Offer may not be extended except as set forth otherwise provided in this Section 2.01(a1.1(a). Subject , extend the Offer, (E) change the form of consideration payable in the Offer or (F) otherwise amend the Offer in any manner adverse to the terms and conditions holders of this Agreement, unless the Offer is extended in accordance with Company Common Stock. Notwithstanding the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its termsforegoing, Merger Subsidiary Sub shall extend the Offer from time to time (1) if, at for the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any minimum 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; provided that Merger Subsidiary shall Offer, but not be required to extend beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer beyond any Offer Condition is not satisfied (or to the End Date. Following expiration of the Offerextent permitted hereby, waived) and until such time as such conditions are satisfied, Merger Subsidiary Sub may, in its sole discretion, provide a without the consent of the Company, or if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more occasions, in consecutive increments between two (2) and ten (10) Business Days each, with the length of such period to be determined by Merger Sub or, in the event such extension is requested by the Company, such period between two (2) and (10) Business Days as the Company requests (or in any event such other period as the parties hereto may agree) (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the earliest to occur of (i) the valid termination of this Agreement in accordance with Article 9 and (ii) the Outside Date. Merger Sub may, in its sole discretion, make available one (1) or more “subsequent offering period (“Subsequent Offering Periodperiods”) , in accordance with Rule 14d-11 under the Exchange Act, of not less than three (3) Business Days and not more than twenty (20) Business Days in the 1934 Actaggregate for all subsequent offering periods. Subject to the foregoing, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn subject to any withholding of Tax pursuant to the Offer, promptly after the final expiration Section 4.2(f)) all shares of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net that Merger Sub becomes obligated to purchase pursuant to the holder thereof in cash, subject to reduction for any applicable withholding TaxesOffer promptly after the expiration of the Offer.
(b) As soon as practicable on On the date of commencement of the Offer, Parent and Merger Subsidiary Sub shall (i) file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments Offer, which shall contain an offer to purchase and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of a related letter of transmittal and summary advertisement, if any, in respect of advertisement (such Schedule TO and the documents included therein pursuant to which the Offer (collectivelyshall be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), . Parent and (ii) Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of the Company SharesCommon Stock as and to the extent required by the Exchange Act. The Company shall promptly furnish to Parent and Merger Subsidiary in writing Sub all information concerning the Company that may be required by applicable securities laws the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent or and Merger Subsidiary Sub for inclusion in the Schedule TO or the Offer Documentstherein. Each of Parent, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. respect and to correct any material omissions therein; and each of Parent and Merger Subsidiary agree to Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected amended or supplemented, to be disseminated to holders of Company Sharesthe Company’s shareholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Parent and Merger Sub shall provide the Company and its counsel copies of any written comments, and shall be given inform the Company and its counsel of any oral comments or discussions, that Parent, Merger Sub or their counsel may receive from or engage with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO and the such Offer Documents each time before any such document is filed with or response (including the SECproposed final version thereof), and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and or its counsel. .
(c) Subject to the terms and the conditions of the Offer and this Agreement, and the satisfaction (or, if permitted to be waived by Parent and Merger, the waiver by Parent and Merger Subsidiary shall provide Sub) of the Company and its counsel with Offer Conditions, (Ai) any comments or other communications, whether written or oral, that Parentas soon as practicable after the applicable Expiration Date, 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 Sub shall accept for payment and promptly after receipt of those comments or other communications, (and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.event within three (3) business days (as determined using Rule 14d-1(g)
Appears in 1 contract
Sources: Merger Agreement